Division 

Section 


JX13I6 

.S4Z 


V. 


Digitized  by  the  Internet  Archive 
in  2017  with  funding  from 
Princeton  Theological  Seminary  Library 


https://archive.org/details/haguepeaceconfer01scot 


THE  HAGUE  PEACE 
CONFERENCES 

1899  and  1907 


At  the  thirteenth  annual  meeting  of  the  Mohonk  Conference 
on  International  Arbitration,  Mr.  Eugene  Levering  of  Balti- 
more, Maryland,  generously  offered  a sum  of  money  to  be 
devoted  to  advancing  the  aims  of  the  Conference.  In  accept- 
ing the  gift  the  Conference  directed  that  the  fund  be  expended 
under  the  auspices  of  the  Johns  Hopkins  University.  Believ- 
ing that  the  fund  would  be  best  expended  in  making  known 
the  achievements  of  the  Hague  Peace  Conferences,  the  Uni- 
versity authorities  asked  Mr.  James  Brown  Scott,  Solicitor 
for  the  Department  of  State  and  Technical  Delegate  of  the 
United  States  to  the  Second  Conference,  to  deliver  a course  of 
lectures  upon  the  work  and  result  of  the  Conferences.  Mr. 
Levering’s  generous  donation  has  been  employed  in  defraying 
the  expenses  of  this  publication. 


THE  HAGUE  PEACE 

confeeence:s 


A SERIES  OF  LECTURES  DELIVERED  BEFORE  THE 
JOHNS  HOPKINS  UNIVERSITY  IN  THE  YEAR  1908 


BY  ^ 

JAMES  BROWN  SCOTT 


TECHNICAL  DELEGATE  OF  THE  UNITED  STATES  TO  THE  SECOND 
PEACE  CONFERENCE  AT  THE  HAGUE 

ASSOCIATE  OF  THE  INSTITUTE  OF  INTERNATIONAL  LAW 


The  irvs  honor  and  dignity  of  the  nation  are  inseparable  from  justice. 

— Albert  Gallatin. 


IN  TWO  VOLUMES 
VOLUME  I - CONFERENCES 


BALTIMORE 

THE  JOHNS  HOPKINS  PRESS 
1909 


COPYRIGHT  1909 

BY  THE  JOHNS  HOPKINS  UNIVERSITY  PRESS 
BALTIMORE^  MD. 


WAVERLY  PRESS 
BALTIMORE 


To  Elihu  Root  and  Robert  Bacon 


PREFACE 


The  following  chapters  are  based  upon  a series  of  lectures 
delivered  before  the  Johns  Hopkins  University  in  the  year 
1908.  The  lectures  have  been  carefully  revised  and  much 
enlarged.  The  substance,  however,  remains  unaltered  and  the 
conversational  style  has  been  preserved. 

In  revising  the  lectures  references  have  been  added  to  the 
Conference  Internationale  de  la  Paix,  the  official  publication  of 
the  Dutch  Government  for  the  first  Conference  and,  as  far  as 
published,  to  the  Deuxieme  Conference  Internationale  de  la 
Paix,  the  official  publication  for  the  second  Conference,  of 
which  only  the  first  of  the  three  volumes  has  appeared.  Fre- 
quent references  have  been  made  in  the  footnotes  to  works  of 
authority  in  order  to  substantiate  the  statements  of  the  text 
and  to  enable  the  reader  to  continue  his  investigation  should 
he  so  desire. 

In  the  elaboration  of  the  lectures  quotations  have  been 
made  from  official  sources  and  from  works  of  authority  too 
numerous  and  too  extended  for  delivery  within  the  limitations 
of  the  lecture-room. 

The  first  three  chapters  are  in  the  nature  of  an  introduction 
to  the  Conferences  and  give  a survey  of  their  positive  results. 
The  fourth  chapter  states  the  composition  and  personnel  of 
the  delegations  and  seeks  to  show  the  influence  exercised  by 
the  delegations  and  important  delegates.  The  subsequent 
chapters  analyze  the  various  conventions,  declarations,  resolu- 
tions and  voeux  of  the  Conferences  generally  in  the  order  of  the 
Final  Acts. 

The  second  volume  contains  the  instructions  to  the  American 
Delegations,  their  official  reports,  the  diplomatic  correspond- 
ence preceding  the  Conferences  and  the  texts  which,  matured 
at  the  Conferences  and  ratified  by  the  participating  Powers, 
have  become  international  law. 


via 


PREFACE 


By  these  means  it  is  hoped  that  the  work  offered  to  the 
reader  presents  the  material  necessary  for  a correct  under- 
standing of  the  origin  and  nature  of  the  Conferences  and  the 
importance  of  their  deliberations. 

James  Brown  Scott. 


Department  of  State, 

January,  1,  1909. 


CONTENTS 


Chapter  I — The  Genesis  of  the  International  Conference  1-34 

1.  Analogy  between  Growth  of  Common  Law  and  Law  of 

Nations 1-7 

2.  Conferences  at  Termination  of  War 7-18 

3.  Conferences  in  Peace  for  Regulation  of  War 18-23 

4.  Peace  Conferences 23-25 

5.  Creation  of  Public  Opinion  for  the  Conference 25-34 

Chapter  II — General  Survey  of  the  First  Peace  Conference  35-87 

1 . N ature  and  Purpose  of  a Conference 35-39 

2.  Calhng  of  the  Conference 39-47 

3.  Opening  of  the  Conference 47-54 

4.  The  First  Commission — The  Limitation  of  Armaments ..  . 54-62 

5.  The  Second  Commission — Geneva  Convention,  Laws  and 

Customs  of  War 62-66 

6.  The  Third  Commission — The  Peaceful  Settlement  of 

International  Disputes 66-87 

Chapter  III — General  Survey  of  the  Second  Peace  Con- 
ference  88-143 

1.  The  Call  of  the  Conference 88-95 

2.  Invitation  to  Latin-America 95-101 

3.  Program  and  Reservations  of  Certain  Powers 101-106 

4.  Opening  of  the  Second  Conference 107-112 

5.  Procedure  of  Conference 112-124 

6.  The  Work  of  the  First  Commission 124-131 

7.  The  Work  of  the  Second  Commission 131-133 

8.  Work  of  the  Third  Commission 133-134 

9.  The  Fourth  Commission 134r-136 

10.  The  Nature  of  Conventions,  Declarations,  Resolutions, 

Recommendations  or  Voeux 136-140 

11.  The  Closing  of  the  Conference 140-143 

Chapter  IV — The  Composition  of  the  Conference 144-187 

1.  The  Personnel  of  the  Delegates 144-163 

2.  Influence  of  Various  Delegations  and  Delegates 163-173 

3.  Formal  and  Informal  Addresses  at  the  Conference 173-180 

4.  The  Social  Side  of  the  Conference 180-187 

Chapter  V — The  Nature,  Origin  and  Practice  of  Inter- 
national Arbitration 188-253 

1.  Nature  and  Origin  of  Arbitration 188—194 

2.  Arbitration  in  the  Ancient  World 194-200 

3.  Arbitration  from  the  Middle  Ages  to  Jay’s  Treaty  (1794)  200-210 

4.  iDstances  of  Arbitration  from  Jay’s  Treaty  (1794) 210-216 


X 


CONTENTS 


Chapter  V — Continued 

5.  Composition  of  the  Arbitral  Tribunal 216-224 

6.  Frequency  of  Arbitration  in  the  Nineteenth  Century ....  224-229 

7.  Examples  of  Arbitration — Principally  American 229-253 

Chapter  VI — The  Convention  for  the  Pacific  Settlement 
OF  International  Disputes  of  1899  and  its  Revision  in 
1907 254-318 

1.  Good  Offices  and  Mediation 256-265 

2.  International  Commission  of  Enquiry 265-273 

3.  Arbitration  and  the  Permanent  Court 274—286 

4.  Arbitral  Procedure 286-312 

5.  The  First  Four  Cases  Decided  by  the  Permanent  Court . . 312-318 

Chapter  VII — Compulsory  Arbitration  at  the  Conferences, 

the  Declaration  in  Favor  of  Compulsory  Arbitration  . . 319-385 

1.  Distinction  Between  Mediation  and  Arbitration 319-321 

2.  Compulsory  Arbitration  at  the  First  Peace  Conference.  . 321-330 

3.  Compulsory  Arbitration  at  the  Second  Conference 330-334 

4.  The  Various  Projects  of  Compulsory  Arbitration 334-343 

5.  Discussion  in  the  Committee  of  Examination  A 344-352 

6.  Discussion  in  Commission 352-379 

7.  Declaration  in  Favor  of  Compulsory  Arbitration 379-385 

Chapter  VIII — The  Convention  Respecting  the  Limitation 
OF  THE  Employment  of  Force  in  the  Recovery  of  Con- 
tract Debts 386-422 

1.  The  Adjustment  of  International  Claims  and  the  Means 

Employed 388-392 

2.  Dr.  Drago’s  Note  of  December  29,  1902 392-400 

3.  The  Discussion  of  the  Question  of  Contract  Debts  in  the 

First  Commission 400-415 

4.  The  Convention  on  Contract  Debts  and  its  Importance.  . 415-422 

Chapter  IX — The  Proposed  Court  of  Arbitral  Justice  . . . 423-464 

1.  The  Permanent  Court  of  1899  and  the  Proposed  Court 

of  1907 423^30 

2.  Discussion  in  the  First  Commission  of  the  Proposed 

Court  of  Arbitral  Justice 430-437 

3.  Discussion  in  the  Committee  of  Examination  B 437-442 

4.  Analysis  of  the  Project  Framed  by  the  Committee  of 

Examination,  Adopted  by  the  First  Commission  and 
Recommended  by  the  Conference 442-460 

5.  The  American  Court  of  Arbitration  under  the  Articles 

of  Confederation 460-464 

Chapter  X — The  Convention  for  the  Establishment  of  an 

International  Court  of  Prize 465-511 

1.  Prize  Courts  are  International  in  Theory,  but  Municipal 

or  National  in  Fact 466-473 


CO  NTENTS 


XT 


Chapter  X — Continued 

2.  Questions  Involved  in  an  Appeal  from  a National  to  an 

International  Court 473-484 

3.  Parties  to  a Case  before  the  International  Prize  Court  . . 484-488 

4.  The  Law  to  be  Administered  by  the  International  Prize 

Court 488-497 

5.  The  Effect  of  a Judgment  of  the  International  Prize 

Court 498-502 

6.  The  Appointment  of  Judges  and  the  Organization  of  the 

Court 503-508 

7.  The  American  Forerunner  of  the  International  Prize 

Court 509-511 

Chapter  XI — The  Opening  of  Hostilities,  the  Laws  and 
Customs  of  War  on  Land,  the  Rights  and  Duties  of  Neu- 
tral Powers  and  Persons  in  Case  of  War  on  Land 512-555 

1.  The  Progress  of  Codification 513-516 

2.  The  Opening  of  Hostilities 516-522 

3.  The  Convention  Respecting  the  Laws  and  Customs  of 

War  on  Land 522-540 

4.  Convention  Respecting  the  Rights  and  Duties  of  Neutral 

Powers  and  Persons  in  Case  of  War  on  Land 541-555 


Chapter  XII — The  Status  of  Enemy  Merchant  Ships  at  the 
Outbreak  of  Hostilities,  the  Conversion  of  Merchant 
Ships  Into  War  Ships,  Submarine  Contact  Mines,  Bom- 
bardment OF  Undefended  Ports  by  Naval  Forces 556-598 

1.  The  Status  of  Enemy  Merchant  Ships  at  Outbreak  of 

Hostilities 556-568 

2.  The  Conversion  of  Merchantmen  into  Warships 568-576 

3.  The  Laying  of  Automatic  Submarine  Contact  Mines 576-587 

4.  Bombardment  of  Undefended  Ports  by  Naval  Forces. . . . 587-598 


Chapter  XIII — The  Adaptation  to  Naval  Warfare  of  the 
Principles  of  the  Geneva  Convention;  Restrictions  on 
THE  Exercise  of  the  Right  of  Capture  in  Naval  Warfare; 

Rights  and  Duties  of  Neutral  Powers  in  Naval  Warfare.  599-648 
1.  Adaptation  to  Naval  Warfare  of  the  Principles  of  the 


Geneva  Convention 599-614 

2.  The  Restriction  of  the  Right  of  Capture  in  Naval  Warfare  614-620 

3.  The  Rights  and  Duties  of  Neutral  Powers  in  Naval  War- 

fare  620-648 

Chapter  XIV — Aerial  Warfare,  the  Limitation  of  Arma- 
ment, THE  Factors  that  Make  for  Peace 649-697 

1.  Aerial  Warfare 649-654 

2.  Limitation  of  Armament 654—672 

3.  Factors  that  Make  for  Peace 672-697 


XU 


CONTENTS 


Chapter  XIV— Continued 

A.  Independence  and  Interdependence  of  Nations.  . 672-675 

B.  International  Commerce 675-678 

C.  Good  Understanding  Based  upon  Knowledge  and 

Sympathy 678-682 

D.  Peace  Societies,  International  Congresses,  Con- 

ferences, Association,  Unions 682-689 

E.  Importance  of  Constitutional  or  Representative 

Governments 689-690 

F.  Growing  Sense  of  Uselessness  of  War 690-694 

G.  Sentiment  in  Favor  of  Arbitration  and  Judicial 

Settlement  of  International  Disputes 694^697 

Chapter  XV — Unfinished  Business  of  the  Second  Con- 
ference. Immunity  of  Private  Property,  Contraband, 
Blockade,  Destruction  of  Neutral  Prizes 698-730 

1.  Immunity  of  Unoffending  Private  Property  of  Enemy 

Upon  High  Seas 699-704 

2.  Contraband 704-717 

3.  Blockade 717-725 

4.  The  Destruction  of  Neutral  Prizes 725-730 

Chapter  XVI — Recommendation  for  a Third  Peace  Con- 
ference   731-751 

Concluding  Remarks 731-751 

\ 

Appendix  to  Chapter  I. 

Mr.  Blaine  to  Mr.  Osborn  Proposing  the  First  Pan-American  Con- 
ference  753-756 

Appendix  to  Chapter  III. 

1.  A Stated  International  Congress 757-759 

A.  International  Congresses  and  Conferences 759-760 

2.  The  Admission  of  Latin-America  to  the  Second  Con- 

ference  761-775 

A.  Action  of  Second  Pan-American  Conference 761 

B.  Extract  from  Mr.  Root’s  Letter  of  March  22,  1906, 

to  Program  Committee  of  the  Third  Pan-Amer- 
ican Conference 762 

C.  Extract  from  Mr.  Root’s  Instructions  to  American 

Delegation  to  the  Third  Pan-American  Confer- 
ence, June  18,  1906  762-763 

D.  The  Question  of  Adherence  of  Nonsignatory  States 

to  the  First  Convention  of  1899  under  Article  60 
to  enable  them  to  participate  in  the  Second  Con- 
ference  763-770 


CONTENTS 


XUl 


Appendix  to  Chapter  III — Continued 

(a) The  Acting  Secretary  of  State  to  the  Brazilian 

Ambassador,  March  5,  1907 763-756 

(b)  The  Secretary  of  State  to  Minister  Hill,  April 

17. 1907  765-766 

(c)  Minister  Hill  to  the  Secretary  of  State,  April 

18.1907  766-768 

(d)  The  Netherland  Minister  to  the  Secretary  of 

State,  May  7,  1907. 768-769 

(e)  The  Acting  Secretary  of  State  to  the  Nether- 
land Minister,  May  11, 1907.  769-770 

E.  Protocol  Permitting  Adherence 770—771 

F.  Proces-Verbal  of  Adherence 772 

3.  The  Reglement  of  the  Second  Conference 773-775 

Appendix  to  Chapter  V. 

Extract  from  West’s  Symboleography  (1592-1594)  Concerning 

Compromise  and  Arbitrements  776-780 

Appendix  to  Chapter  VI. 

1.  Elements  for  the  Elaboration  of  a Convention  to  be  Con- 

cluded by  the  Powers  participating  in  the  Hague  Con- 
ference, presented  by  the  Russian  Delegation  of  1899 . 781-796 

A.  Good  Offices  and  Mediation  781-787 

(a)  Explanatory  Note  Relating  to  Article  Five 

of  the  Russian  Project. 782-787 

B.  International  Commissions  of  Inquiry 788-789 

C.  A Draft  Code  of  Arbitration 789-794 

D.  Russian  Proposals  concerning  an  Arbitration  Tri- 

bunal....  794-796 

(а)  Articles  which  Might  Replace  Articles  I,  13 . . 794 

(б)  Annex  to  the  Russian  Proposals 794-795 

(c)  Appendix  A,  mentioned  in  Additional  Article 

(a)  2 of  the  Russian  Proposals 795-796 

2.  The  British  Arbitration  Proposals. 796-799 

A.  Sir  Julian  Paimcefote’s  First  Proposal 796-798 

B.  Sir  Julian  Paimcefote’s  New  Proposal 798-799 

3.  The  American  Scheme — Proposal  for  an  International 

Tribunal 799-801 

4.  The  Italian  Proposals 801-802 

Appendix  to  Chapter  VII. 

1.  The  Russian  Proposal  of  International  Arbitration 803-812 

A.  Explanatory  Note  of  the  Russian  Delegation  Relat- 
ing to  Article  X of  the  Russian  Project 805-812 

2.  Treaties  of  Arbitration  since  the  First  Hague  Conference  812-819 


XIV 


CONTENTS 


Appendix  to  Chapter  IX. 

1.  Articles  of  Confederation,  1781,  Extract  from  Article  9.  820-821 

2.  Proposition  of  the  American  Delegation  Regarding  the 

Permanent  Court  of  Arbitration 821-823 

3.  Suggested  Composition  of  the  Court  of  Arbitral  Justice  823-825 

Table  A 823-824 

Table  B 825 

Appendix  to  Chapter  XI. 

Additions  proposed  by  Germany  to  the  Convention  concerning 

the  laws  and  Customs  of  War  on  Land 826-828 

Appendix  to  Chapter  XII. 

Draft  of  Regulations  concerning  the  Laying  of  Automatic  Sub- 
marine Contact  Mines 829-831 


THE  HAGUE  PEACE 
CONFERENCES 

1899  AND  1907 


CONFERENCES 


CHAPTER  I 


THE  GENESIS  OF  THE  INTERNATIONAL 
CONFERENCE 

1.  Analogy  Between  Gkowth  op  Common  Law  and  Law 

OF  Nations 

The  Second  International  Peace  Conference,  like  its  prede- 
cessor of  1899,  endeavored  to  humanize  the  hardships  neces- 
sarily incident  to  war  and  to  substitute  for  a resort  to  arms 
a pacific  settlement  of  international  grievances,  which,  if 
unsettled,  might  lead  to  war  or  make  the  maintenance  of  / 
pacific  relations  difficult  and  problematical.  The  Conference 
of  1907,  no  more  than  its  immediate  predecessor,  satisfied 
the  leaders  of  humanitarian  thought.  War  was  not  abolished, 
nor  was  peace  legislated  into  existence.  Universal  disarma- 
ment, or,  indeed,  any  restriction  of  armament,  was  as  unac- 
ceptable in  1907  as  in  1899,  and  some  few  nations  were  still 
unwilling  to  bind  themselves  to  arbitrate  international  dis- 
putes not  involving  independence,  vital  interests,  or  national 
honor. 

Deeply  interested  in  the  success  of  these  projects,  the  great 
public  felt  that  their  failure  necessarily  involved  the  failure  of 
the  Conference,  notwithstanding  that  many  wise  and  humani- 
tarian measures  falling  short  of  the  goal  were  incorporated 
into  the  law  of  nations.  But  we  should  not  in  our  disappoint- 
ment, and  perhaps  bitterness  of  soul,  overlook  positive  and 
beneficent  progress,  and  if  the  Conference  did  not  take  the 
advanced  position  outlined  by  the  friends  of  peace,  we  may 
nevertheless  rejoice  that  many  a mile-stone  has  been  passed. 
We  must  not  forget  that  an  international  conference  differs 
from  a parliament;  that  independent  and  sovereign  nations 
are  not  bound  by  majorities,  and  that  positive  results  are 


1 


2 


THE  HAGUE  PEACE  CONFERENCES 


obtained  by  compromising  upon  desirable  but  perhaps  less 
advanced  projects.  The  aim  of  a conference  is  to  laydown 
a law  for  all,  not  for  the  many,  much  less  for  the  few; 
to  establish  a law  which  will  be  international  because  it  is 
accepted  and  enforced  by  all  nations. 

The  work  of  the  conference  concerned  the  modification  of 
existing  international  law : international  differences  of  opinion 
and  interpretation  were  adjusted;  doubt  gave  place  to  cer- 
tainty; and,  after  much  consideration  and  reflection,  princi- 
ples of  international  law  were  fortified,  modified  in  part,  or 
wholly  discarded.  A complete  code  was  not  outlined — it  is 
doubtful  whether  custom  and  usage  are  ripe  for  codification 
— but  important  topics  of  international  law  were  given  the 
symmetry  and  precision  of  a code. 

It  may  be  maintained  that  international  law  is  law  in  the 
strict  sense  of  the  word,  or  it  may  be  contended  that  it  lacks 
an  essential  element  of  law,  because  there  is  no  international 
sheriff:  that  it  is  international  morality  or  ethics;  or  that 
finally  a law  of  nations  is  the  occupation  of  the  theorist  and 
the  hope  of  the  dreamer.  However  opinions  may  differ  as 
to  the  nature  of  international  law,  there  can  be  no  doubt  of  the 
existence  of  certain  rules  and  regulations  which  do  by  common 
consent  control  the  conduct  of  independent  nations,  nor  can 
there  be  any  reasonable  doubt  that  enlightened  people  of  all 
countries  take  a deep  and  abiding  interest  in  international 
law,  and  share  the  hope  of  the  dreamer,  not  only  that  greater 
definiteness  may  be  given  to  its  principles,  but  that  the 
principles  themselves  may  be  developed  and  applied  with  the 
regularity,  certainty  and  accuracy  of  a municipal  code. 

From  the  cell  of  the  cloister  international  law  passed  into 
the  study  of  the  philosopher,  the  jurist,  and  the  scholar;  from 
the  study  it  entered  the  cabinets  of  Europe,  and  for  two  cen- 
turies and  more  a recognized  system  of  international  law  has 
determined  the  foreign  relations  of  nations ; from  the  cabinet  to 
courts  of  justice,  where  the  rights  of  nations,  as  well  as  individ- 
uals have  been  debated  and  declared;  and  finally,  from  the 
court-room,  international  law  has  made  its  way  to  the  people. 


THE  GENESIS  OF  THE  INTERNATIONAL  CONFERENCE  3 


who,  in  last  resort,  dominate  court  and  cabinet,  and  enlist  in 
their  service  scholar  as  well  as  priest. 

It  was  a wise  remark  of  Sir  James  Mackintosh  that  consti- 
tutions are  not  made;  they  grow,  for  history  demonstrates 
that  unnatural  unions  dissolve;  that  unnatural  alliances  have 
little  permanency;  that  constitutions  struck  off  at  the  heat  of 
a moment  in  times  of  excitement  disappear  with  the  causes  to 
which  they  owe  their  origin.  Constitutions  are,  in  a large  and 
broad  sense  of  the  word,  codifications.  They  put  into  written 
and  permanent  form  the  usages  and  customs  of  the  past, 
and  they  last  because  the  spirit  underlying  these  usages  and 
customs  is  wrapped  up  with  the  existence  and  destiny  of 
the  people.  The  Constitution  of  the  United  States  has  lasted, 
because  it  was  based  upon  the  usages  and  customs  of  England, 
as  modified  by  the  experience  in  the  colonies,  and  the  Consti- 
tution will  last  as  long  as  it  answers  the  needs  of  its  framers, 
and  no  longer.  To  understand,  however,  the  Constitution, 
English  customs  and  usages  must  be  studied,  and  to  predict 
the  lines  of  development  we  must  interpret  the  language  of 
the  Constitution  in  the  light  of  its  origin,  and  apply  it  to  the 
concrete  case  under  investigation.  It  is  the  same  with  law. 
Law  is  not  imposed  as  a system  upon  the  people.  Isolated 
usage  develops  into  habit;  the  habit  becomes  crystallized  into 
custom;  and  to  custom  there  is  given,  consciously  and  uncon- 
sciously, the  force  of  law. 

The  common  law  of  England  is  not  due  to  the  wisdom  of 
any  one  person  or  of  any  one  age.  It  grew  to  meet  a need;  it 
changed  with  that  need,  and  disappeared  when  it  could  no 
longer  subserve  a useful  purpose.  It  is  a growth,  an  organism, 
not  a crystallization. 

When,  however,  the  process  of  development  did  not  keep 
abreast  of  the  age,  or  when  new  and  unsuspected  needs 
required  special  treatment,  statutes  made  their  appearance  to 
supply  the  lack  or  to  correct  the  evil.  The  statute  would  be 
special  if  a special  point  were  involved.  The  statute  would  be 
general  in  its  terms  if  the  evil  to  be  corrected  was  general,  or 
the  need  of  the  statute  was  of  a general,  wide-spread  nature. 


4 


THE  HAGUE  PEACE  CONFERENCES 


The  more  rapid  the  development  of  the  country,  the  greater 
and  more  diversified  become  the  needs  of  an  enterprising  and 
progressive  community,  and,  consequently,  the  more  frequent 
would  be  and  must  be  the  resort  to  statutory  enactments,  in 
order  to  safeguard  the  rights  and  interests  created  as  the 
result  of  changed  conditions.  It  follows,  therefore,  that  a system 
of  law  in  its  early  stages  springs  directly  out  of  the  needs  of  the 
people.  If  the  needs  be  simple,  the  law,  of  which  custom  is 
the  very  life,  is  simple.  It  is  said  to  be  unwritten  in  the  sense 
that  no  custom  is  at  once  the  law  and  the  evidence,  although 
in  process  of  time  the  customs  are  naturally  reduced  to  writing 
by  people  learned  in  customary  law,  and  it  is  given  precision 
by  decrees  of  courts  of  justice.  Complex  situations  give  rise 
to  a complex  system  of  law,  and  the  natural  development  of 
custom  not  being  sufficient,  the  legislature  steps  in  by  statute 
to  accelerate  the  development  and  to  give  to  the  system  of  law 
the  clearness,  the  solidity,  and  the  refinement  necessary  for 
a complicated  and  progressive  civilization.  In  this  devel- 
opment, then,  we  have  the  local  usage,  the  custom,  and  the 
statute. 

If  we  turn  from  the  common  law  to  international  law,  we 
find  that  the  course  of  development  of  the  common  law  of 
nations  has  been  singularly  like  that  of  the  common  law  of 
England. 

We  first  have  the  usages  of  enlightened  nations.  These 
usages  spread,  gain  weight  and  influence  by  repeated  applica- 
tion. We  next  find  that  the  usages  have  taken  on  the  form 
of  custom,  and  nations  from  isolated  or  frequent  usage  regard 
the  custom  as  binding  upon  them.  That  which  is  claimed  as 
a right  on  the  one  side  becomes  a duty  on  the  other,  for  right 
and  duty  are  correlative.  The  demand  in  itself  is  a consent 
to  the  rule  of  law.  The  yielding  to  the  demand  is  an  acknowl- 
edgment of  the  rightfulness  of  the  custom. 

We  thus  have  customary  rules  and  regulations  binding 
nations  in  their  mutual  intercourse,  because  the  nations,  either 
by  enforcing  the  custom  or  yielding  to  the  custom  sought  to  be 
enforced,  have  given  to  the  custom  the  weight  of  law.  But 


THE  GENESIS  OP  THE  INTERNATIONAL  CONFERENCE  5 


just  as  the  common  law  of  England  grew  slowly,  indeed,  imper- 
ceptibly, so  have  the  usages  of  nations  developed  slowly  and 
imperceptibly.  When  nations  had  little  intercourse  with  one 
another,  the  need  for  a system  of  law  regulating  such  relations 
was  scarcely  felt.  As  nations  grew  and  came  into  closer  contact, 
it  necessarily  followed  that  the  usages  and  customs  of  nations 
were  developed  in  order  adequately  to  meet  changed  condi- 
tions. The  independence  of  the  state  is  the  very  postulate  of 
international  law;  but  the  solidarity  of  interest  has  made  itself 
felt  to  such  a degree  that  nations  have  yielded  and  must  in 
the  future  yield  something  of  their  absolute  liberty  and  inde- 
pendence, just  as  a citizen  yields  his  absolute  freedom  for  the 
benefit  of  society,  of  which  he  is  a part. 

We  see,  then,  from  this  brief  and  imperfect  sketch  of  the 
origin  and  nature  of  the  common  law  of  one  particular  juris- 
diction, an  analogy  between  the  common  law  of  nations, 
namely,  the  usages  and  customs  of  many  nations.  We  find, 
or  at  least  we  can  assume,  that  when  only  one  nation  existed 
there  could  be  no  international  law;  two  nations  existing 
would  have  comparatively  little  intercourse  and  the  rules  and 
regulations  governing  their  intercourse  would,  therefore,  be 
simple.  As  the  two  gave  place  to  the  many,  and  as  inter- 
course became  very  frequent,  the  need  of  a more  elaborate 
code  would  become  evident.  Usage  and  custom  would  grow 
to  meet  the  need,  and  in  the  course  of  time,  insensibly  and 
imperceptibly,  usage  and  custom  would  take  the  dimensions 
of  a code.  While  this  is  true  generally,  it  is  true  with  much 
greater  force  in  the  present  and,  indeed,  in  the  immediate 
past;  for  the  discovery  of  North  and  South  America,  and  the 
contest  for  the  possession  of  this  world;  the  establishment  of 
colonies  with  the  various  colonial  systems,  and  the  conflicts 
of  interest  that  necessarily  arose,  would  require  a system  of 
law  adequate  to  settle  them;  and  when  nations  became  more 
closely  connected,  more  intimately  and  frequently  involved,  it 
followed  that  the  simplicity  of  the  earlier  usages  and  customs 
would  either  give  place  to  a more  complicated  code,  or  would 
themselves  be  developed  in  order  to  meet  the  growing  needs. 


6 


THE  HAGUE  PEACE  CONFERENCES 


As  nations  thus  became  more  closely  united  or  related, 
previous  usage  or  custom  was  found  to  be  inadequate;  but 
the  spirit  pervading  the  usage  or  custom  was  discovered  and 
developed,  precisely  as  the  spirit  in  the  common  law  was 
developed  in  order  to  meet  a changed  condition  of  affairs. 
Just  as  in  appropriate  cases  the  municipal  legislature  stepped 
in  and  corrected  an  abuse  or  covered  a field  by  statute,  con- 
ferences were  held  between  rulers,  treaties  were  negotiated  to 
regulate  a specific  concrete  controversy,  and  finally  congresses, 
not  at  the  beginning  but  at  the  end  of  the  controversy,  com- 
posed of  many  states,  because  the  interests  of  many  were 
concerned,  were  convened  in  order  that  that  might  remain 
settled  in  peace  which  had  been  established  in  war.  The 
conference  or  congress  is,  it  would  seem,  not  far  removed  from 
an  international  legislature,  whose  acts  are  submitted  ad 
referendum  to  the  participating  nations. 

We  therefore  find  that  treaties  mark  the  first  general  step  in 
the  development  of  the  law  of  nations  as  between  nations  in 
recent  years,  for  it  is  only  in  the  modern  world  that  treaties 
have  gone  far  to  correct  uncertainty,  to  remove  irregularity 
and  to  establish  a system  of  international  relations.  The 
special  or  individual  treaties  will  be  comparatively  simple  in 
the  other  respects.  When  the  many  were  involved,  a congress 
or  conference  came  naturally  into  being,  with  the  result  that 
in  this  conference  the  questions  causing  the  conflict  would  be 
considered  and  regulated,  in  the  hope  of  preventing  a recurrence 
of  the  conflict.  The  conferences  and  congresses  were  at  the 
conclusion  of  a dispute.  The  appeal  was  indeed  to  reason, 
but  it  was  unfortunately  belated.^  Interesting  examples  of 

‘ In  speaking  of  LordCastlereagh’s  attitude  and  action  at  the  Congress  of 
Vienna,  Richard  Cobden  said  in  his  arbitration  speech  June  12, 1849,  in  the 
House  of  Commons:  “ I want  to  know,  whether  as  good  men  as  Lord  Cas- 
tlereagh  could  not  be  found  to  settle  these  matters  before,  as  after,  a twenty 
years’  war? 

“ All  I want  is,  that  this  should  be  done  before,  and  not  after,  engaging  in  a 
war — done  to  avert  the  war,  rather  than  to  make  up  the  difference  after 
the  parties  are  exhausted  by  the  conflict.” — Speeches  on  Questions  of 
Public  Policy,  by  Richard  Cobden,  Vol.  II,  pp.  392-393. 

The  advantages  of  a conference  called  to  settle  in  advance  international 


THE  GENESIS  OF  THE  INTERNATIONAL  CONFERENCE  7 


the  post-mortem  appeal  to  reason  are  furnished  by  the  Treaty 
of  Westphalia  (1648),  the  various  treaties  of  Utrecht  (1713- 
1714),  the  Congress  of  Vienna  (1814-15),  the  Congress  of  Paris 
(1856),  and  the  Congress  of  Berlin  (1878). 

2.  Conferences  at  Termination  of  War 

These  congresses,  however  differing  in  importance  and  in 
influence  upon  future  development,  have  this  point  in  com- 
mon: that  they  were  preceded  by  war;  that  they  owed  their 
very  existence  to  war,  and  that  they  could  not,  from  the  nature 
of  things,  have  met  in  peace.  They  settled  the  immediate 
controversy  submitted  to  them  and  were,  to  this  extent,  peace 
conferences.  Summoned  for  a special  purpose,  their  results 
were  mainly  limited  to  the  object  of  the  call,  but  they  not 
infrequently  expressed  views  on  broader  questions  of  general 
interest.  These  stipulations,  whether  declaratory  or  amenda- 
tory of  international  law,  and  however  unconscious,  limited 
in  extent  and  tentative  in  their  nature,  were  in  reality  statu- 
tory enactments.  As  such,  they  have  a general  interest  and 
have  survived  the  particular  treaties  to  which  they  were  inci- 
dental. Indeed  the  elaborate  treaties  are  valuable  today 
solely  or  largely  on  account  of  their  general  provisions.  This 
is  especially  and  increasingly  so  with  the  later  congresses,  of 
which  the  congress  of  Paris  of  1856  is  the  most  striking  exam- 
ple. Important  in  themselves,  they  are  doubly  important 
to  us  as  showing  the  possibility  of  a congress  and  as  furnishing 
precedents  for  the  codification  of  international  law. 

difficulties  over  a conference  meeting  at  the  end  of  a war  for  the  settle- 
ment of  controversies  have  never  been  better  stated  than  in  the  follow- 
ing passage  taken  from  the  speech  of  the  King  of  Portugal  in  opening  the 
Cortese : 

“Congresses  which  assemble  in  consequence  of  wars  only  sanction,  as  a 
rule,  the  advantages  secured  by  the  strongest;  and  the  treaties  which 
result  from  such  congresses  rest  on  accomplished  facts  rather  than  on 
right.  They  create  forced  situations,  ending  in  general  uneasiness,  and 
producing  protests  and  armed  demands.  A congress  before  war,  and 
intended  to  prevent  war  is,  to  my  mind,  a generous  idea  favoring  prog- 
ress.” 

Gennadius:  Record  of  International  Arbitration  (1904),  p,  78. 


8 


THE  HAGUE  PEACE  CONFERENCES 


The  possibilities  of  the  international  congress  were  lost 
neither  upon  the  participants  nor  public  opinion  and  we  thus 
find  that  conferences  assemble  in  time  of  peace,  although 
preceded  by  war  for  the  express  purpose  of  determining  in 
advance  of  war  rules  and  regulations  for  the  conduct  of  hostil- 
ities. The  fragmentary  statute  of  the  war-congress  has 
shown  the  usefulness  of  statutory  regulation  and  the  advisa- 
bility of  settling  consciously  and  without  the  excitement  and 
commotion  of  war,  questions  of  interest  to  possible  belliger- 
ents as  well  as  to  the  actual  contestants  in  a particular  war. 
This  second  great  group  of  conferences  begins  to  appear  in  the 
latter  half  of  the  nineteenth  century  and  include  the  Red  Cross 
or  Geneva  Conferences  of  1864  and  1868;  the  Conference  of 
St.  Petersburg,  resulting  in  the  Declaration  of  St.  Petersburg  of 
1868;  and  the  Conference  of  Brussels  of  1874  for  the  codifica- 
tion of  the  laws  and  customs  of  war. 

These  gatherings  were  indeed  preceded  by  war,  but  were 
not  assembled  to  end  any  particular  war,  and  determine 
the  conditions  of  peace.  Differing  widely  in  their  nature  and 
importance,  they  have  this  point  in  common,  that  they  were 
due  to  private  initiative,  although  convoked  by  an  enlightened 
state  or  sovereign  in  response  to  public  opinion.  The  Congress 
of  Berlin  of  1884-1885  called  for  the  purpose  of  recognizing  the 
Congo  and  for  determining  the  interests  of  the  Great  Powers 
in  the  colonization  of  Africa,  is  not  only  important  in  itself 
but  furnishes  the  example  of  an  international  conference  nei- 
ther preceded  nor  followed  by  a war,  but  bent  solely  upon  the 
prevention  of  international  conflict  by  international  legislation. 

The  Panama  Congress  of  1826  and  especially  the  Pan-Ameri- 
can Conference  of  1889-1890,  due  to  the  personal  initiative  and 
foresight  of  Mr.  James  G.  Blaine,  should  be  mentioned  because 
they  show  that  the  American  continent  was  not  only  familiar 
in  theory  but  in  practice  with  the  idea  of  a conference  for  the 
pacific  settlement  of  international  conflicts,  and  that  America 
as  a unit  favored  arbitration  as  a substitute  for  force. 

The  third  step  in  the  development  of  the  international 
congress  is  the  Hague  Peace  Conference  of  1899,  followed  by 


THE  GENESIS  OP  THE  INTEENATIONAL  CONFERENCE  9 


the  Second  Conference  of  1907 — precursors,  it  is  hoped,  of  a 
series  of  congresses  summoned  in  time  of  peace  for  the  preser- 
vation of  the  world’s  peace. 

I shall  now  consider  briefly  each  group  and  its  most  impor- 
tant members.^ 

The  Treaty  of  Westphalia  was  negotiated  by  representatives 
of  the  countries  engaged  in  the  Thirty  Years’  War,  and  the 
state  of  affairs  established  was  hoped  to  be  durable. 

The  Peace  of  Westphalia — consisting  of  the  two  treaties 
of  Munster,  where  the  French  made  peace  with  the  Empire, 
and  of  Osnabriick,  where  the  Swedes  negotiated  with  the 
Emperor  and  the  smaller  German  powers — was  in  reality  a 
legislative  act,  for  it  not  only  put  an  end  to  the  Thirty  Years’ 
War,  but  adjusted  the  relations  of  a large  part  of  Europe. 
Switzerland,  long  independent  and  severed  from  the  Empire, 
was  acknowledged  to  be  independent  in  law  as  well  as  in  fact. 
In  the  same  way,  while  the  Peace  of  Westphalia  was  being 
negotiated,  Holland  and  Spain  came  to  separate  terms  at 
Munster,  by  which  the  freedom  and  sovereignty  of  the  United 
Provinces  were  recognized. 

It  is  beyond  the  present  purpose  to  state  in  detail  the  provi- 
sions of  the  Treaty  of  Westphalia.  It  is  sufficient  to  show  that 
a conference  of  interested  powers  assembled,  in  order,  by  an 
appeal  to  reason,  to  substitute  order  for  disorder,  and  by  a 
recognition,  however  imperfect,  of  the  rights  of  others  to 
secure  law  and  order  for  themselves. 

The  actual  results  and  the  importance  in  international  law 
of  the  various  conferences  known  generically  as  the  Peace 
of  Westphalia,  are  admirably  stated  by  our  countryman, 
Wheaton,  from  whose  History  of  the  Law  of  Nations,  the 
following  paragraphs  are  quoted: 

' For  a list  of  important  international  conferences,  congresses  or  associa- 
tions of  official  representatives  of  governments,  exclusive  of  war  Conferences, 
see  American  Journal  of  International  Law,  Vol.  I (1907),  pp.  808-829. 
See  also  in  the  same  volume  Judge  Simeon  E.  Baldwin’s  article  on  Interna- 
tional Congresses  and  Conferences  of  the  Last  Century  as  Forces  Working 
toward  the  Solidarity  of  the  World  (pp.  575-578)  and  Professor  Reinsch's 
Article  on  International  Unions  and  their  Administration  (pp.  579-623). 


10 


THE  HAGUE  PEACE  CONFERENCES 


The  Peace  of  Westphalia,  1648,  may  be  chosen  as  the  epoch 
from  which  to  deduce  the  history  of  the  modern  science  of 
international  law.  This  great  transaction  marks  an  important 
era  in  the  progress  of  European  civilization.  It  terminated  the 
long  series  of  wars  growing  out  of  the  religious  revolution  accom- 
plished by  Luther  and  Calvin,  and  the  struggle  commenced  by 
Henry  IV  and  Richelieu,  and  continued  by  Mazarin  against  the 
political  preponderance  of  the  house  of  Austria.  It  established 
the  equality  of  the  three  religious  communities  of  Catholics, 
Lutherans,  and  Calvinists  in  Germany,  and  sought  to  oppose  a 
perpetual  barrier  to  further  religious  innovations  and  seculariza- 
tions of  ecclesiastical  property.  At  the  same  time  it  rendered 
the  states  of  the  empire  almost  independent  of  the  emperor,  its 
federal  head.  It  arrested  the  progress  of  Germany  towards 
national  unity  under  the  Catholic  banner,  and  prepared  the 
way  for  the  subsequent  development  of  the  power  of  Prussia — 
the  child  of  the  Reformation — which  thus  became  the  natural 
head  of  the  protestant  party  and  the  political  rival  of  the  house 
of  Austria,  which  last  still  maintained  its  ancient  position  as 
the  temporal  chief  of  the  Catholic  body.  It  introduced  two 
foreign  elements  into  the  internal  constitution  of  the  empire — 
France  and  Sweden  as  guarantees  of  the  peace,  and  Sweden  as  a 
member  of  the  federal  body — thus  giving  to  these  two  powers 
a perpetual  right  of  interference  in  the  internal  affairs  of  Ger- 
many. It  reserved  to  the  individual  states  the  liberty  of  form- 
ing alliances  among  themselves  as  well  as  with  foreign  powers, 
for  their  preservation  and  security,  provided  these  alliances 
were  not  directed  against  the  emperor  and  the  empire,  nor 
contrary  to  the  public  peace  and  that  of  Westphalia.  This 
liberty  contributed  to  render  the  federative  system  of  Germany 
a new  security  for  the  general  balance  of  European  power.  The 
Germanic  body,  thus  placed  in  the  center  of  Europe,  served 
by  its  composition,  in  which  so  many  political  and  religious 
interests  were  combined,  to  maintain  the  independence  and 

tranquillity  of  all  the  neighboring  states 

The  peace  of  Westphalia  continued  to  form  the  basis  of 
the  conventional  law  of  Europe,  and  was  constantly  renewed 
and  confirmed  in  every  successive  treaty  of  peace  between  its 

central  states  until  the  French  revolution 

The  peace  of  Westphalia,  closing  the  age  of  Grotius,  coincides 
with  the  foundation  of  the  new  school  of  public  jurists,  his 
disciples  and  successors  in  Holland  and  Germany.  The  peace 
completed  the  code  of  the  public  law  of  the  empire,  which  thus 
became  a science  diligently  cultivated  in  the  German  univer- 
sities, and  which  contributed  to  advance  the  general  science  of 
European  public  law.  It  also  marks  the  epoch  of  the  firm 
establishment  of  permanent  legations,  by  which  the  pacific 
relations  of  the  European  states  have  been  since  maintained; 


THE  GENESIS  OF  THE  INTERNATIONAL  CONFERENCE  H 


and  which,  together  with  the  appropriation  of  the  widely  diffused 
language  of  France,  first  to  diplomatic  intercourse,  and  subse- 
quently to  the  discussions  of  international  law,  contributed  to 
give  a more  practical  character  to  the  new  science  created  by 
Grotius  and  improved  by  his  successors.^ 

In  view  of  the  fundamental  importance  of  the  Congress 
of  Westphalia  and  of  its  transcendent  value  as  a precedent 
for  further  conferences,  and  in  view  likewise  of  the  demon- 
stration afforded  by  it  that  a permanent  state  of  affairs  may 
be  established  by  an  appeal  to  reason,  even  if  the  appeal 
was  made  at  the  end  of  a war  which  had  broken  the  body 
and  curbed  the  spirit  of  the  strongest,  inclining  alike  to  peace 
men  of  affairs  and  dreamers  of  dreams,  a further  quotation 
is  made  from  an  authoritative  and  conservative  writer: 

“The  actual  state  system  of  the  civilized  world,”  says  the 
venerable  Professor  Westlake,  “dates  from  the  Peace  of  West- 
phalia, which  closed  the  Thirty  Years’  War  in  1648.  The  inter- 
course between  most  European  states  had  previously  been 
intermittent,  but  the  multitude  of  representatives  assembled 
at  the  Congress  which  concluded  that  peace  was  in  itself  an 
affirmation  of  the  existence  of  a body  of  states  whose  interests, 
whether  agreeing  or  clashing,  did  not  permit  them  to  be  stran- 
gers to  one  another,  and  ever  since  then  it  has  been  the  practice 
for  every  state  belonging  to  the  system  to  be  permanently  rep- 
resented at  the  capitals  of  the  other  states  by  resident  ambas- 
sadors or  ministers  of  inferior  rank.  The  principle  of  accepting 
accomplished  facts  as  the  ground  of  international  relations  was 
exemplified  in  a striking  manner  by  the  recognition  of  the 
independence  of  the  United  Netherlands  and  Switzerland,  and 
by  the  acknowledgment  of  the  right  of  the  princes  and  cities 
comprised  within  the  Holy  Roman  Empire  to  contract  diplo- 
matic engagements  with  each  other  and  with  states  outside 
the  empire,  subject  only  to  the  condition,  which  there  were 
no  means  of  enforcing,  that  their  engagements  should  not  be 
prejudicial  to  the  empire  or  the  emperor.  The  tendency  to 
base  international  relations  on  general  grounds  of  principle, 
so  far  as  facts  permit,  was  strongly  promoted  by  the  great  num- 
ber of  the  states  which  thus  enjoyed  unquestioned  sovereignty, 
while  many  of  them  were  so  weak  that  there  could  be  little  safety 

’ Henry  Wheaton’s  History  of  the  Law  of  Nations  in  Europe  and 
America  from  the  Earliest  Times  to  the  Treaty  of  Washington,  1842,  pp. 
69-72. 


12 


THE  HAGUE  PEACE  CONFERENCES 


for  them  if  grounds  of  principle  were  abandoned.  .And  it  is 
established  that  the  principles  to  be  admitted  were  secular: 
the  pope’s  claim  to  supreme  temporal  authority  was  obsolete, 
and  now  the  Protestant  states  in  Germany  were  firmly  placed 
on  an  equal  footing  with  the  Catholic  ones.  The  modern  inter- 
national society  was  thus  founded,  and  the  states  which  belonged 
to  it  in  1648,  including  those  which  continue  their  identity  under 
different  names  and  with  varied  limits,  as  Savoy  became  Sar- 
dinia and  Sardinia  Italy,  may  be  called  its  original  members. 
Since  1648,  without  reckoning  the  growing  intercourse  with 
states  of  various  Oriental  civilizations,  new  members  have  been 
added  to  the  full  international  society  by  many  different  proc- 
esses.”^ 

The  Peace  of  Westphalia,  which  established  national  and 
international  relations  upon  a basis  of  substantial  equality, 
and  thus  marks  a starting  point  in  the  modern  law  of  nations, 
should  not  be  dismissed  without  a reference  to  the  immortal 
work  of  Grotius,  which  owed  its  existence  to  the  horrors  and 
bloodshed  of  the  Thirty  Years’  War.^ 

The  possibilities  of  the  international  congress  were  foreseen 
by  Grotius  and  outlined  within  the  compass  of  a much  quoted 
paragraph. 

“It  would  be  useful,”  he  says,  “and  indeed  it  is  almost  neces- 
sary, that  certain  Congresses  of  Christian  Powers  should  be  held, 
in  which  the  controversies  which  arise  among  some  of  them 

‘ Westlake’s  International  Law,  Part  I,  Peace,  pp.  44-45. 

* I,  for  the  reasons  which  I have  stated,  holding  it  to  be  most  certain 
that  there  is  among  nations  a common  law  of  Rights  which  is  of  force  with 
regard  to  war,  and  in  war,  saw  many  and  grave  causes  why  I should  write 
a work  on  that  subject.  For  I saw  prevailing  throughout  the  Christian 
world  a license  in  making  war  of  which  even  barbarous  nations  would  have 
been  ashamed ; recourse  being  had  to  arms  for  slight  reasons  or  no  reason ; 
and  when  arms  were  once  taken  up,  all  reverence  for  divine  and  human  law 
was  thrown  away,  just  as  if  men  were  thenceforth  authorized  to  commit  all 
crimes  without  restraint. — Grotius.  DeJure  Belli  ac  Pacis,  Prolegomena, 
Sec.  28. 

If  the  Thirty  Years’  War  thus  provoked  the  first  masterpiece  of  inter- 
national law,  upon  whose  broad  and  firm  foundation  a stately  structure 
has  been  reared,  the  Peace  of  Westphalia  was  the  first  modern  realization 
of  the  doctrines  propounded  in  the  book  as  a substitute  for  the  warfare 
which  Grotius  sought  to  regulate  and  humanize,  until  reason  would  fur- 
nish an  adequate  and  acceptable  substitute  for  force. 


THE  GENESIS  OF  THE  INTEKNATIONAL  CONFEKENCE  13 


may  be  decided  by  others  who  are  not  interested;  and  in  which 
measures  may  be  taken  to  compel  the  parties  to  accept  peace  on 
equitable  terms. 

Unfortunately,  the  expounder,  if  not  the  creator  of  interna- 
tional law,  did  not  live  to  see  the  Peace  of  Westphalia,  which 
put  an  end  to  the  horrors  and  barbarities  which  he  deplored, 
for  he  died  in  1645,  but  the  treaty  was  the  first  fruit  of  the 
new  doctrine  which,  after  regulating  warfare,  will  eventually 
establish  peace  as  the  normal  and  only  durable  state  of  things. 

The  various  treaties  bearing  the  name  of  Utrecht  (1713- 
1714)  were  negotiated  at  the  conclusion  of  war  by  the  par- 
ties in  conflict.  They  were  in  the  nature  of  a statute,  but 
their  provisions  of  a special  and  political  nature  need  not  detain 
us.  These  provisions  were,  however,  only  less  fundamental 
than  those  of  Westphalia  and  offer  a valuable  precedent  for  an 
international  conference.  Again  to  quote  Wheaton: 

The  treaties  of  Utrecht  were  constantly  renewed  and  confirmed 
from  this  time  forth  in  every  successive  treaty  of  peace  between 
the  great  continental  and  maritime  powers  until  the  peace  of 
Luneville,  1800,  and  that  of  Amiens,  1803,  when  they  were  for 
the  first  time  omitted.  The  only  material  alteration,  during  all 
this  period,  in  the  territorial  arrangements  stipulated  by  this  great 
compact  was  that  provided  by  the  treaty  of  Vienna,  1738,  which 
transferred  the  crown  of  the  two  Sicilies  to  a branch  of  the  house 
of  Bourbon.  In  other  respects  the  territorial  arrangements  of 
the  south  of  Europe  continued  to  rest  until  the  French  revolution, 
and  still  continue  to  rest  upon  the  basis  of  the  peace  of  Utrecht.* 

‘ Grotius.  De  Jure  Belli  ac  Pacis,  Book  II,  ch.  23,  sec,  VIII,  Art.  4, 

^ Henry  Wheaton’s  History  of  the  Law  of  Nations,  pp.  87-88.  The 
Peace  of  Utrecht  consists  of  separate  treaties  made  by  France  with  Great 
Britain,  Portugal,  Prussia,  Savoy  and  Holland  (April  11,  1713);  and  by 
Spain  with  Great  Britain  (July  13);  and  with  Savoy  (April  13),  which 
were  followed  by  treaties  of  Spain  with  Holland  (June  26,  1714),  and  with 
Portugal  (February  6,  1715),  signed  at  the  same  place.  The  treaty  of 
Rastadt  (March  6,  1714)  made  by  the  emperor,  for  himself  and  the  Empire, 
with  France,  was  modified  slightly  and  finished  at  Baden  in  Switzerland, 
September  7,  1714.  (Woolsey’s  International  Law,  6th  ed.  p.  435.) 

The  reader  is  referred  to  Appendix  II  in  Woolsey’s  International  Law 
for  the  provisions  of  the  chief  treaties  from  1526  to  the  Congress  of  Berlin 
(1878). 


14 


THE  HAGUE  PEACE  CONFERENCES 


Several  general  stipulations,  however,  have  outlived  wars 
and  the  rumors  of  wars,  for  Great  Britain  and  France  on 
the  one  hand,  and  France  and  Holland  on  the  other,  agreed 
that  ships  of  each  shall  be  free  to  carry  goods  not  contra- 
band and  persons  not  military  pertaining  to  the  enemies  of 
the  other.  To  quote  the  exact  language: 

The  ship  itself,  as  well  as  the  other  goods  found  therein,  are 
to  be  esteemed  free,  neither  may  they  be  detained  on  pretense 
of  their  being,  as  it  were,  infected  by  the  prohibited  goods,  much 
less  shall  they  be  confiscated  as  lawful  prize. 

And  again,  in  the  treaty  between  Great  Britain  and  France, 
the  liberty  granted  to  goods  on  a free  or  neutral  ship 

shall  be  extended  to  persons  sailing  on  the  same,  in  such  wise 
that,  though  they  be  enemies  of  one  or  both  parties,  they  shall 
not  be  taken  from  the  free  ship,  unless  they  be  military  persons, 
actually  in  the  service  of  the  enemy. 

Free  ships  do  indeed  make  free  goods,  and  the  principle 
re-enunciated  in  the  Treaty  of  Utrecht  has  made  its  way  into 
the  law  of  the  world. ‘ 

Passing  over  the  various  conferences  held  and  the  treaties 
concluded  in  the  eighteenth  century,  we  come  to  the  Con- 
gress of  Vienna  (1814—1815),  which  attempted,  by  a rigid  and 
thorough  application  of  the  principle  of  legitimacy,  to  recon- 
struct Europe  upon  permanent  lines,  after  the  crash  of  the 
French  Revolution  and  the  downfall  of  Napoleon. 

In  a separate  and  secret  article  of  the  Treaty  of  Paris  of 
1814,  the  allied  powers  reserved  to  themselves  the  disposal  of 
the  territories  renounced  by  France  in  the  open  treaty,  as 
well  as  the  relations  tending  to  produce  a system  of  real  and 
durable  equilibrium.  The  wit  and  ingenuity  of  Talleyrand 
made  the  outcast  a power  in  the  Congress  which,  opening 

* It  should  be  said  that  another  clause  of  the  treaty  between  Great 
Britain  and  France  (Article  XIII)  has  survived  to  the  present  day,  and  been 
the  measure  of  the  right  of  France  to  participate  in  the  Newfoundland 
fisheries,  until  by  an  agreement  concluded  on  April  8,  1904,  France 
renounced  the  privileges  established  to  her  advantage  by  Article  XIII  of 
the  Treaty  of  Utrecht, ‘and  confirmed  or  modified  by  subsequent  provisions. 


.-SSff.'SSSV' 


THE  GENESIS  OF  THE  INTERNATIONAL  CONFERENCE  15 


at  Vienna,  on  November  1,  1814,  closed  its  deliberations 
on  June  11,  1815.  Eight  powers  were  represented:  Great 
Britain,  Russia,  Austria,  Prussia,  France,  Spain,  Portugal 
and  Sweden.  It  was,  in  effect,  a conference  of  dictators  and 
required  the  smaller  powers  to  submit  to  their  decrees  without 
a share  in  their  deliberations.  In  other  words,  the  great 
powers  agreed  among  themselves  and  legislated  for  the  rest  of 
Europe.  The  work,  therefore,  was  largely  political,  but  as  all 
were  concerned,  all  were  regarded  as  present  or  bound  by  the 
determinations  of  the  Congress.  It  was  preeminently  a war 
conference,  but  it  established  peace — a peace  which  lasted 
for  many  years.  Its  deliberations  took  the  form  of  a general 
statute.  It  neutralized  Switzerland;  it  proclaimed  the  free 
navigation  of  international  rivers;  it  regulated  the  rank  of 
diplomatic  agents,  and  decreed  the  abolition  of  the  slave  trade. 

From  our  point  of  view  the  value  of  the  Congress  of  Vienna 
lies  not  in  what  it  actually  did  but  in  the  precedent  it  furnishes 
for  subsequent  congresses  and  is  only  less  important  than  the 
Congress  of  Westphalia.  No  one  has  expressed  this  idea  more 
clearly  than  the  distinguished  publicist  Sir  Travers  Twiss,  from 
whom  I quote  the  following  passages : 

The  Congress  of  Vienna  inaugurated  a new  era  in  the  history 
of  European  public  law,  in  proclaiming  the  principle  that  the 
states  of  Europe  owe  to  the  community  of  nations  duties  to 
which  their  special  interests  must  be  subordinated.  From  the 
Congress  of  Westphalia  to  the  Congress  of  Vienna,  special  inter- 
ests had  the  upper  hand  and  the  cardinal  principle  of  public  law 
was  the  absolute  respect  of  the  sovereignty  of  the  individual  states. 

‘ The  provisions  of  a general  nature  are  thus  summarized  by  a recent 
and  competent  authority,  Dr.  Oppenheim:  “The  Final  Act  of  the  Vienna 
Congress  . . . . comprises  law-making  stipulations  of  world-wide  impor- 

tance concerning  four  points — namely,  first,  the  perpetual  neutralization 
of  Switzerland  (Article  118,  No.  11);  secondly,  free  navigation  on  so-called 
international  rivers  (Articles  108-117);  thirdly,  the  abolition  of  the  negro 
slave  trade  (Article  118,  No.  15);  fourthly,  the  different  classes  of  diploma- 
tic envoys  (Article  118,  No.  16).”  (International  Law,  Vol.  I,  Peace, 
sec.  556). 

The  regulations  concerning  diplomatic  agents  as  modified  by  the  Con- 
gress of  Aix-la-Chappelle — everywhere  recognized  and  adopted — form  Arti- 
cle 18  of  the  instructions  to  diplomatic  officers  of  the  United  States,  p.  8. 


16 


THE  HAGUE  PEACE  CONFERENCES 


Napoleon  I trampled  under  foot  the  international  law  of  his 
epoch,  but  upon  the  ruins  of  the  old  system  there  arose  a con- 
sciousness of  the  community  of  interests  which  has  called  into 
being  the  consciousness  of  a community  of  duties.  This  con- 
sciousness has  contributed  powerfully  to  the  establishment  of  a 
new  order  of  affairs  whose  highest  expression  is  the  European 
Congress.  The  reunions  of  representatives  of  independent  states 
with  the  mission  to  settle  doubtful  points  of  public  law  have 
limited  the  liberty  of  individual  states,  by  regulating  their  recip- 
rocal relations  in  the  interest  of  the  community;  nevertheless 
these  reunions  marked  a real  progress  in  the  interest  of  the 
individual  states  by  recognizing  their  right  to  share  upon  a foot- 
ing of  equality  the  benefits  of  a common  jurisprudence.* 

* Sir  Travers  Twiss,  on  the  Congress  of  Vienna  and  the  Conference  of 
Berlin  (1884-1885)  Revue  de  Droit  International  et  de  L4gislation  Com- 
par4e,  Vol.  XVII,  p.  201. 

The  change  noticeable  in  international  relations  in  the  past  century 
has  been  indicated  by  Professor  Joseph  H.  Beale,  Jr.,  in  the  following 
brief  and  pointed  passages: 

"The  most  striking  development  of  the  law  of  nations  during  the  Last 
century  has  been  in  the  direction  of  international  constitutional  law,  if 
I may  so  call  it,  rather  than  of  the  substantive  private  law  of  nations.  At 
the  beginning  of  the  period  the  fundamental  doctrine  of  international  law 
was  the  equality  of  all  states  great  or  small,  and  this  idea,  as  one  might 
expect,  was  fully  recognized  and  insisted  on  during  the  first  fifty  years  of 
the  century.  There  was  little  development  in  the  law  otherwise.  Each 
nation  adopted  and  enforced  its  own  idea  of  national  rights,  and  was  power- 
less to  force  its  ideas  upon  other  nations. 

“In  the  last  half  of  the  century,  however,  there  has  been  an  enormous 
development  of  combinations,  both  to  affect  and  to  enforce  law;  and 
resulting  therefrom  a development  of  the  substance  of  the  law  itself.  The 
associations  of  civilized  nations  to  suppress  the  slave  trade  both  made 
and  enforced  a new  law.  The  concert  on  the  Eastern  question,  the  Con- 
gress of  Paris,  the  joint  action  of  the  Powers  in  the  case  of  Greece  and 
Crete,  and  in  the  settlement  of  the  questions  raised  by  the  Russo-Turkish 
and  Japanese  wars,  the  Geneva  and  the  Hague  conventions,  are  all  proofs 
of  the  increasing  readiness  of  the  Great  Powers  to  make,  declare,  and 
enforce  doctrines  of  law;  and  they  have  not  hesitated,  in  case  of  need,  to 
make  their  action  binding  upon  weaker  states,  disregarding,  for  the  good 
of  the  world,  the  technical  theory  of  the  equality  of  all  states.  While 
all  independent  states  are  still  free,  they  are  not  now  regarded  as  free  to 
become  a nuisance  to  the  world.” 

Address  delivered  before  the  Congress  of  Arts  and  Sciences  Universal 
Exposition,  St.  Louis,  September  20, 1904,  printed  in  the  proceedings  of  the 
Congress  of  Arts  and  Sciences,  Vol.  VII,  pp.  473-474.  Reprinted  in  XVIII, 
Harvard  Law  Review,  pp.  274-275. 


THE  GENESIS  OF  THE  INTERNATIONAL  CONFERENCE  17 


The  political  regulations  of  the  Congress  were  temporary  in 
their  nature,  not  of  universal  interest  or  concern.  The  former 
passed  away  with  the  causes  to  which  they  owed  their  origin; 
the  few  universal  provisions  have  lasted,  and  show  by  their 
survival  that  only  matters  of  universal  interest  outlive  a con- 
ference. But  the  fact  that  they  do  outlive  a conference,  is  a 
reason  why  conferences  should  meet  and  discuss  questions 
of  universal  and  permanent  interest  and  importance.  Criti- 
cise the  Congress  of  Vienna  as  we  may,  for  it  was  based  upon 
self-interest  and  greed,  its  work  was  not  only  of  fundamental 
importance,  but  pointed  the  way  to  a better  and  brighter  day. 

The  next  great  conference,  whose  conclusions  can  be  said 
to  possess  legislative  value,  was  the  Congress  of  Paris,  held 
in  1856,  at  the  conclusion  of  the  Crimean  War.  It  was  there- 
fore, as  its  many  predecessors,  a war  conference,  but  it  is 
memorable  in  the  annals  of  international  law  for  the  fact  that 
it  seriously  and  consciously  began  the  codification  of  interna- 
tional law.  It  was  natural  that  its  work  should  concern  the 
laws  of  war,  because  war  was  the  reason  for  its  assembling,  but 
having  concluded  peace  and  regulated  the  special  interests  of 
the  parties  in  interest  the  conference  took  up  broad  questions 
of  general  and  universal  interest.  The  solution  which  it  gave 
was  satisfactory  at  the  time  and  is  widely,  if  not  universally, 
recognized  as  an  integral  part  of  public  international  law. 

1.  Privateering  is,  and  remains  abolished. 

2.  The  neutral  flag  covers  enemy’s  goods,  with  the  excep- 
tion of  contraband  of  war. 

3.  Neutral  goods,  with]  the  exception  of  contraband  of  war, 
are  not  liable  to  capture  under  the  enemy’s  flag. 

4.  Blockades,  in  order  to  be  binding,  must  be  effective,  that 
is  to  say,  maintained  by  a force  sufficient  really  to  prevent  access 
to  the  coast  of  the  enemy. 

The  Congress  of  Paris  did  not,  however,  merely  begin 
seriously  the  codification  of  international  law  and  furnish  an 
admirable  specimen,  albeit  within  narrow  limits,  but  it  voiced 
in  no  uncertain  terms  the  sentiment  of  enlightened  progress 
when,  in  Article  VIII  of  the  general  treaty,  it  declared  for 
mediation  of  the  contracting  powers,  in  order  to  prevent  a 


18 


THE  HAGUE  PEACE  CONFERENCES 


recourse  to  force,  should  a controversy  arise  which  threatened 
their  peaceful  relations. 

Although  it  can  not  be  denied  that  the  Congress  of  Berlin  of 
1878,  like  its  predecessor  the  Congress  of  Paris,  was  a war 
conference,  it  is  nevertheless  true  that  its  work  was  not  wholly 
confined  to  the  issues  of  war,  and  while  its  meeting  was  due 
to  the  Russo-Turkish  War  and  dissatisfaction  with  the  Treaty 
of  San  Stefano,  concluded  between  the  belligerents,  its  delib- 
erations were  as  broad  as  the  interests  directly  or  indirectly 
causing  the  war.  It  was  in  this  sense  a war  congress,  but  in 
addition  to  concluding  a peace  between  the  belligerents,  the 
Congress  dealt  particularly  and  largely  with  the  Balkan  Penin- 
sula, and  set  up  the  state  of  affairs  which,  while  changed  in  part, 
is  nevertheless  the  basis  of  order  in  eastern  Europe.  Con- 
voked by  war,  it  sought,  by  establishing  a firm  peace,  to  remove 
the  causes  of  war,  and  its  assembling,  as  well  as  the  success 
of  its  work,  gave  an  impetus  to  international  conferences. 
Such  are  in  brief  the  classic  examples  of  the  War  Congress. 

3.  Conferences  in  Peace  for  Regulation  of  War 

But  alongside  of  these  larger  gatherings  there  were  smaller 
meetings  that  have  profoundly  influenced  the  future,  and  from 
the  many,  four  may  be  selected  for  purposes  of  illustration. 
The  conferences  referred  to  are  the  first  Geneva  Convention  of 
1864,  the  later  Geneva  Convention  of  1868,  the  St.  Petersburg 
Conference  of  1868,  and  the  Brussels  Conference  of  1874. 
Differing  widely  in  their  origin  and  nature,  these  conferences 
have  one  important  point  in  common,  namely,  that  they  were 
not  immediately  preceded  by  a war,  and  that  they  were  not 
assembled  in  order  to  adjust  the  terms  of  peace.  They  were, 
however,  war  conferences  in  the  sense  that  they  dealt  exclu- 
sively with  questions  arising  in  war,  and  in  the  further  sense 
that  the  results  of  their  deliberations  were  meant  to  regulate, 
and  actually  have  regulated,  the  conduct  of  future  warfare. 
They  all  met  in  a time  of  peace,  in  response  to  an  urgent  and 
enlightened  public  opinion,  and  they  thus  furnished  prece- 
dents for  the  first  Peace  Conference  of  1899  in  that  they 


THE  GENESIS  OF  THE  INTERNATIONAL  CONFERENCE  19 


showed  not  merely  the  possibility,  but  the  feasibility,  of 
general  conferences  meeting  in  times  of  peace.  Had  the  first 
conference  dealt  solely  with  the  matter  of  armament,  as  pro- 
posed in  the  first  call,  and  adopted  rules  and  regulations  deal- 
ing solely  with  the  question  of  armaments,  the  Conferences  of 
Geneva  of  1864  and  1868,  the  Conference  of  St.  Petersburg 
and  the  Conference  of  Brussels  of  1874  would  have  been  not 
merely  forerunners,  but  parallels.  The  second  rescript, 
by  enlarging  the  scope  of  the  Conference,  so  as  to  consider 
the  means  by  which  wars  may  be  prevented,  differentiated 
the  First  Peace  Conference  from  its  predecessors,  and  made  it 
in  fact  as  well  as  in  theory  a peace  conference.  But  to 
return  to  the  subject  more  immediately  at  hand. 

The  former  theory  and  practice  of  nations  was  that  war  is 
a relation,  not  merely  beween  State  and  State,  but  between  the 
individual  citizens  of  contending  States,  who,  by  the  declaration 
of  war,  became  enemies,  and  subject  to  be  treated  as  such. 
Enlightened  practice  draws  a distinction  between  enemies,  by 
dividing  them  into  two  categories,  combatants  and  non-com- 
batants, permitting  the  use  of  force  against  the  combatant, 
even  to  the  point  of  taking  his  life.  The  non-combatant, 
while  still  regarded  as  in  a certain  sense  an  enemy,  is  not 
actively  such,  and  a sick  or  wounded  combatant  should  not 
be  treated  in  the  same  manner  as  a combatant.  He  can  do  no 
harm;  therefore,  he  is  harmless.  Humanity  not  only  requires 
that  he  should  not  be  injured:  it  insists  that  he  be  protected 
and  furnished  the  medical  attendance  necessary  and  proper  to 
restore  him  to  health. 

The  horrors  of  the  Crimean  War,  due  in  large  part  to  a 
lack  of  adequate  medical  equipment,  the  Franco-Austrian  War 
of  1859,  especially  the  battle  of  Solferino,  in  which  thousands 
of  wounded  died  for  lack  of  care,  caused  a friend  of  humanity, 
Henri  Dunant,  to  publish,  in  the  year  1862,  a brochure,  entitled 
Un  Souvenir  de  Solferino,  in  which  he  gave  a heartrending 
description  of  the  sufferings  of  the  wounded,  either  abandoned 
or  improperly  treated,  and  showed  that  the  quickest  and  best 
remedy  for  inadequate  official  service  was  to  permit  the  organi. 


20 


THE  HAGUE  PEACE  CONFERENCES 


zation  of  voluntary  associations  for  the  care  of  the  sick  and 
wounded.  The  pamphlet  had  an  enormous  circulation.  The 
Geneva  Society  of  Public  Utility,  under  the  presidency  of 
Mr.  Gustave  Moynier,  a name  always  to  be  mentioned  with 
respect,  took  up  the  project,  and  as  a result  of  the  combined 
efforts  of  M.  Dunant  and  the  Geneva  Society,  an  international 
conference  was  held  at  Geneva,  in  1863,  composed  of  repre- 
sentatives of  a great  number  of  States,  of  delegates  from  chari- 
table societies,  and  friends  of  humanity.  Without  going  into 
details,  it  is  sufficient  for  the  present  purpose  to  state  that  this 
conference,  wholly  unofficial  and  due  to  private  initiative, 
influenced  the  Swiss  Government  to  invite  an  official  conference 
to  be  held  at  Geneva  in  the  coming  year,  with  the  result  that 
the  celebrated  Red  Cross  Convention  was  adopted  and  signed 
at  Geneva  on  August  22,  1864,  by  which  the  moral  duty  to 
protect  the  sick  and  wounded  was  transformed  into  an  interna- 
tional and  legal  obligation.  The  horrors  of  the  Crimea  and  of 
the  Italian  campaign  gave  rise  to  this  first  convention.  The 
naval  battle  of  Lissa  between  the  Austrian  and  Italian  fleets 
in  1866,  in  which  a large  number  of  shipwrecked  sailors 
perished  for  lack  of  adequate  attendance,  led  in  1868  to  the 
assembling  of  a second  diplomatic  conference  at  Geneva,  in 
order  to  extend  to  maritime  warfare  the  humanitarian  pro- 
visions of  the  First  Geneva  Convention.  The  result  of  the 
labors  of  this  second  conference,  likewise  due  to  the  initiative 
of  Switzerland,  is  known  to  the  world  as  the  project  of  addi- 
tional articles  signed  and  dated  October  20,  1868.  It  will  be 
noted  that  these  conferences  were  due,  in  the  first  place  to 
the  individual  and  private  initiative  of  M.  Dunant  and  M. 
Moynier,  and  that  a progressive  country,  in  response  to  public 
opinion,  issued  the  call. 

If  humanity  demanded  that  the  sick  and  wounded  be  prop- 
erly cared  for,  humanity  likewise  insisted  that  science  should 
not  improperly  and  needlessly  injure  and  wound  the  victim 
of  war.  The  purpose  of  war  is  not  to  kill  but  to  disable  the 
combatant,  and  while  the  weapon  must  be  effective,  it  should 
not  be  needlessly  destructive.  Destructiveness  is  a means,  not 


THE  GENESIS  OF  THE  INTERNATIONAL  CONFERENCE  21 


an  end  in  itself.  The  wars  of  1864  and  1866  were  decisive  and 
bloody;  the  proposed  introduction  of  newly  invented  explo- 
sives and  the  fear  of  their  consequences  led  an  enlightened 
Czar  of  Russia,  Alexander  II,  to  call  a conference  at  St.  Peters- 
burg to  consider  whether  the  means  of  warfare  might  not  be 
humanized,  and  the  use  of  certain  instruments  be  prohibited 
such  as  projectiles  of  a certain  weight  and  of  an  explosive 
quality.^  The  conference  was  preceded  by  but  was  not 
summoned  to  end  any  particular  war,  and  the  Declaration  of 
St.  Petersburg — the  result  of  its  labors — contemplates  the 
existence  of  war.  The  underlying  spirit  of  the  Declaration  is, 
however,  so  clearly  humanitarian  and  universal  in  its  aim, 
and  the  declaration  itself  shows  so  conclusively  the  possibilities 
of  enlightened  international  legislation  that  its  material  parts 
deserve  quotation: 

Considering  that  the  progress  of  civilization  should  have  the 
effect  of  alleviating,  as  much  as  possible  the  calamities  of  war; 

That  the  only  legitimate  object  which  states  should  en- 
deavor to  accomplish  during  war  is  to  weaken  the  military  force 
of  the  enemy; 

That  for  this  purpose,  it  is  sufficient  to  disable  the  greatest 
possible  number  of  men; 

That  this  object  would  be  exceeded  by  the  employment  of 

‘ In  1863  a bullet  was  introduced  into  the  Russian  army,  to  be  used  for 
blowing  up  ammunition  wagons,  which  exploded,  by  means  of  a cap,  on 
contact  with  a hard  substance.  The  fear  that  this  sort  of  bullet  might  be 
employed  against  troops  was  increased  when,  in  1867,  a modification  of  it 
was  suggested  which  enabled  it  to  explode,  without  a cap,  on  contact  even 
with  a soft  substance.  The  Russian  War  Minister,  General  Milutine,  was 
reluctant,  therefore,  to  sanction  the  use  of  the  bxillet,  as  thus  modified,  and 
induced  his  Government  to  issue  a circular  to  the  Powers,  inviting  them  to 
send  delegates  to  an  International  Military  Commission,  for  the  con- 
sideration of  the  question  which  had  arisen.  The  Prussian  Government 
was  disposed  to  enlarge  the  scope  of  the  inquiry,  so  as  to  enable  it  to  deal 
generally  with  the  application  of  scientific  discoveries  to  warfare.  To 
this  Great  Britain  was  opposed,  and  her  view  was  found  to  be  shared  by 
the  other  Powers  when  the  delegates  met  at  St.  Petersburg  on  October  29 
(November  9),  1868.  They  agreed  upon  a Declaration,  prohibiting  the 
employment  of  the  bullets  in  question,  on  November  4 (16),  and  it  was 
signed  on  behalf  of  the  seventeen  Powers  concerned  by  their  diplomatic 
representatives  at  the  Russian  Court,  as  Plenipotentiaries,  on  November 
29  (December  11).  Brazil  subsequently  acceded  to  it. — ^Holland’s  Laws 
of  War  on  Land,  1908,  p.  78. 


22 


THE  HAGUE  PEACE  CONFERENCES 


arms  which  uselessly  aggravate  the  sufferings  of  disabled  men, 
or  render  their  death  inevitable; 

That  the  employment  of  such  arms  would,  therefore,  be  con- 
trary to  the  laws  of  humanity; 

The  contracting  parties  engage,  mutually,  to  renounce,  in 
case  of  war  among  themselves,  the  employment,  by  their 
military  or  naval  forces,  of  any  projectile  of  less  weight  than  four 
hundred  grammes,  which  is  explosive,  or  is  charged  with  fulmi- 
nating or  inflammable  substances. 

The  Conference  of  Brussels  of  1874,  to  which  reference  has 
already  been  made,  likewise  assembled  at  the  call  of  the 
Russian  Czar,  Alexander  II,  but  as  in  the  case  of  the  Geneva 
Convention,  the  initiative  was  unofficial.  A French  society 
for  the  amelioration  of  the  condition  of  prisoners  of  war  had 
elaborated  a project  and  called  an  international  conference  to 
meet  at  Paris  on  May  4,  1874,  in  order  to  discuss  the  question. 
But  in  the  month  of  April,  the  society  was  informed  by  Prince 
Grow  that  the  Russian  Government  was  considering  a project 
on  a broader  and  more  general  scale, 

embracing  the  facts  incident  to  a state  of  war,  and  designed 
to  fix  the  rules  which,  adopted  by  common  accord  of  civilized 
states,  would  serve  to  diminish,  as  far  as  possible,  the  calamities 
of  international  conflicts  in  rendering  more  clear  and  certain 
the  rights  and  duties  of  governments  and  of  arms  in  times  of 
war. 

The  association  was  therefore  invited  to  adjourn  to  a more  dis- 
tant date  the  proposed  conference.  The  conference  thus  sum- 
moned by  the  Russian  Government  consisted  of  represent- 
atives of  fifteen  European  states,  and  remained  in  session  at 
Brussels  from  July  27,  to  August  27,  1874.  The  conference 
drafted  a project  of  an  international  declaration  concerning 
the  laws  and  customs  of  war,  the  result  of  careful  and  pro- 
longed discussion,  which  marks  in  many  particulars  a great 
advance.*  The  British  representatives  refused  to  consider 
the  question  of  naval  warfare,  and  the  conference  therefore 
confined  itself  to  warfare  on  land.  The  conference  was  in 
reality  a deliberative  assembly,  whose  members  were  assembled 

' See  report  of  Sir  A.  Horsford,  the  British  delegate,  in  Lorimer’s  Insti- 
tutes of  the  Law  of  Nations,  Vol.  II,  Appendix  II,  pp.  337-402. 


THE  GENESIS  OF  THE  INTERNATIONAL  CONFERENCE  23 


to  consider  the  various  questions  submitted  for  discussion. 
The  representatives  were  not  authorized  to  conclude  agree- 
ments binding  their  governments,  nor  did  the  governments 
themselves  ratify  the  declaration.  It  remained  in  the  form 
of  a project  until  twenty-five  years  later  when  it  was  in  a 
modified,  improved  and  enlarged  form,  incorporated  into  the 
convention  on  the  laws  and  customs  of  war,  adopted  by  the 
Hague  Conference.  It  is  thus  apparent  that  the  Conference 
at  Brussels  was  in  no  slight  sense  a forerunner  of  the  First  Peace 
Conference,  which,  in  one  respect  at  least,  so  far  considered 
itself  as  a successor,  that  it  took  up  and  completed  the  project 
outlined  at  Brussels  in  1874,  just  as  the  Peace  Conferences  of 
1899  and  1907  adapted  the  Additional  Articles  of  the  Geneva 
Convention  to  the  changed  conditions  of  1907.  Convoked  in  a 
time  of  peace,  the  Brussels  Conference  was,  however,  a war 
conference,  in  that  its  call  was  due  to  the  hardships  and 
suffering  of  the  then  recent  Franco-Prussian  War. 

The  four  conferences  mentioned  were,  therefore,  precedents 
for  the  Hague  Conference,  and  it  is  not  without  interest  to 
note  that  each  one  of  the  various  projects  adopted  by  these 
conferences  was  discussed  at  the  First  Conference;  that  two  of 
them,  namely,  the  Additional  Articles  of  1868,  and  the  Brussels 
project,  were  revised  and  enlarged  in  the  light  of  experience, 
and  adopted  in  the  form  of  international  conventions  by  the 
First  Hague  Peace  Conference.  It  is  also  interesting  to  note 
that  two  of  these  four  conferences  were  called  by  one  and  the 
same  enlightened  Czar  of  Russia,  so  that  we  have  not  merely 
international  but  personal  precedent. 

4.  Peace  Conferences 

Two  conferences  of  Europe  and  America  should  bementione- 
in  passing  as  furnishing  precedents  for  the  First  Hague  Confer 
ence  because  each  met  in  a time  of  profound  peace  and  each 
was  neither  preceded  by  nor  followed  by  war,  and  the  mission 
of  each  was  to  prevent  war,  the  one  by  removing  possible 
causes,  the  other  by  providing  a substitute  in  many  cases. 


24 


THE  HAGUE  PEACE  CONFERENCES 


The  first  is  the  Congress  for  the  regulation  of  the  Congo, 
which  met  at  Berlin  upon  the  formal  invitation  of  Germany, 
November  15,  1884,  and  completed  its  labors  on  February 
26,  1885.  Of  the  value  of  this  Congress,  a recent  writer — ^to 
whose  chapter  on  important  law-making  treaties  the  student 
is  referred — says : 

The  General  Act  of  the  Congo  Conference  of  Berlin  of  Febru- 
ary 26,  1885,  ....  is  a law-making  treaty  of  great  importance, 
stipulating:  freedom  of  commerce  within  the  basin  of  the  river 
Congo  for  all  nations;  prohibition  of  slave-transport  within 
that  basin;  neutralization  of  Congo  Territories;  freedom  of 
navigation  on  the  rivers  Congo  and  Niger  for  merchantmen  of 
all  nations;  and,  lastly,  the  obligation  of  the  signatory  Powers 
to  notify  one  another  all  future  occupations  on  the  coast  of  the 
African  continent.^ 

The  American  precedent  is  the  Pan-American  Conference, 
which  met  in  Washington,  October  2, 1889,  and  adjourned  April 
19,  1890,  and  in  which  eighteen  American  States  were  repre- 
sented. 

In  the  circular  letter  Secretary  Blaine,  dated  November 
29,  1881,  the  conference  was  to  meet  at  Washington,  Nov- 
ember 24,  1882,  for  the  purpose  of  considering  and  discuss- 
ing the  methods  of  preventing  war  between  the  nations  of 
America. 

He  [the  president]  desires  that  the  attention  of  the  Con- 
gress shall  be  strictly  confined  to  this  one  great  object;  that  its 
sole  aim  shall  be  to  seek  a way  of  permanently  averting  the 
horrors  of  cruel  and  bloody  combat  between  countries,  oftenest 
of  one  blood  and  speech,  or  the  even  worse  calamity  of  internal 
commotion  and  civil  strife;  that  it  shall  regard  the  burdensome 
and  far-reaching  consequences  of  such  struggles,  the  legacies 
of  exhausted  finances,  of  oppressive  debt,  of  onerous  taxation, 
of  ruined  cities,  of  paralyzed  industries,  of  devastated  fields, 
of  ruthless  conscription,  of  the  slaughter  of  men,  of  the  grief 
of  the  widow  and  the  orphan,  of  embittered  resentments,  that 
long  survive  those  who  provoked  them  and  heavily  afflict  the 
innocent  generations  that  come  after.^ 

* Dr.  Oppenheim’s  International  Law,  Vol.  I,  Peace  (1905), Chapter  III, 
pp.  563-568. 

’For  the  text  of  this  remarkable  document,  see  Appendix,  pp.  751-754. 


THE  GENESIS  OF  THE  INTERNATIONAL  CONFERENCE  25 


The  meeting  of  the  congress  did  not  take  place  until  1889. 
Commenting  upon  the  Congress,  Mr.  John  Bassett  Moore  says, 
in  his  International  Law  Digest: 

Of  this  conference  one  of  the  results  was  the  celebrated  plan  of 
arbitration  adopted  April  18, 1890.  By  this  plan  it  was  declared 
that  arbitration,  as  a means  of  settling  disputes  between  Amer- 
ican republics,  was  adopted  “as  a principle  of  American  inter- 
national law;”  that  arbitration  should  be  obligatory  in  all 
controversies  concerning  diplomatic  and  consular  privileges, 
boundaries,  territories,  indemnities,  the  right  of  navigation  and 
the  validity,  construction,  and  enforcement  of  treaties;  and  that 
it  should  be  equally  obligatory  in  all  other  cases,  whatever  might 
be  their  origin,  nature,  or  object,  with  the  sole  exception  of 
those  which,  in  the  judgment  of  one  of  the  nations  involved  in 
the  controversy,  might  imperil  its  independence;  but  that,  even 
in  this  case,  while  arbitration  for  that  nation  should  be  optional, 
it  would  be  “obligatory  upon  the  adversary  power. 

The  modem  world  was  thus  familiar  with  the  conference  at 
the  end  of  war;  with  the  conference  called  in  time  of  peace  to 
humanize  and  regulate  future  war;  and  with  the  conference 
meeting  in  time  of  peace  to  prevent  war  by  eliminating  its 
probable  causes  as  well  as  with  the  conference  assembling 
“for  the  purpose  of  considering  and  discussing  methods  of 
preventing  war”  by  a substitute  for  war,  namely  international 
arbitration. 

The  initiative  of  individual  and  enlightened  sovereigns  had 
blazed  the  trail;  public  opinion  of  the  community  of  nations 
now  forces  the  hand  of  sovereign  and  statesman. 

5.  Creation  of  Public  Opinion  for  the  Conference 

Instances  are  indeed  rare  in  which  a sovereign,  of  his  own 
will,  and  without  an  impelling  force,  takes  his  people  into 
counsel,  and  shares  with  them  the  government  of  the  country 
entrusted  to  his  care.  Public  opinion,  expressed  through  a 
longer  or  shorter  period  of  time,  has  resulted  in  a readjust- 
ment of  the  relations  between  the  governor  and  the  governed, 
and  the  participation  of  citizens  and  subjects  in  the  govern- 
ment of  their  respective  countries  is  nothing  but  a surrender 

‘ Moore’s  International  Law  Digest,  Vol,  VII,  pp.  70-71. 


26 


THE  HAGUE  PEACE  CONFERENCES 


to  public  opinion.  Conferences  called  by  sovereigns,  whatever 
they  may  have  been  in  earlier  times,  when  the  declaration  of 
war  and  the  conclusion  of  hostilities  were  preeminently  sub- 
jects for  the  sovereign  to  decide,  and  therefore  about  which 
sovereigns  might  well  confer,  are  called  at  the  present  day,  and 
have  been  for  some  time  past,  in  response  to  an  enlightened 
international  opinion,  so  strong  in  volume  and  unmistakable 
in  terms  that  it  can  not  be  neglected  with  impunity.  This 
public  opinion,  however  strong  and  irresistible  it  may  be,  is 
the  result  of  gradual,  and  indeed  imperceptible,  growth,  but 
it  exists  and  is  certain  to  control  the  future,  as  it  has  dominated 
the  immediate  past. 

Statesmen,  clergymen,  philosophers,  jurists,  and  dreamers 
of  dreams,  without  a calling  or  a profession,  had  urged  upon 
an  unwilling  and  unappreciative  world  the  holding  of  interna- 
tional conferences.  “The  great  design”  of  Henry  IV  and 
his  minister.  Sully,  outlined  a permanent  conference  in  which 
matters  of  international  importance  might  be  discussed,  and 
peace,  albeit  an  armed  peace,  maintained.  The  Nouveau 
Cyn^e,  published  by  Emeric  Cruc6,  proposing  a general  con- 
ference and  arbitration  of  international  differences,  preceded 
by  two  years  the  milder  and  less  specific  recommendations 
of  Grotius.  The  gentle  Penn,  in  1693,  published  an  Essay 
Towards  the  Present  and  Future  Peace  of  Europe,  by  the 
establishment  of  an  European  Diet,  Parliament,  or  Estates, 
moved  thereto,  as  he  says,  by  the  project  of  Henry  IV. 
In  the  eighteenth  century,  the  Abb4  de  Saint-Pierre  and  Jean 
Jacques  Rousseau  published  their  projects  for  perpetual  peace, 
based  upon  a permanent  and  perpetual  union,  with  a perpet- 
ual congress  or  senate  in  which  the  sovereigns  should  be  repre- 
sented by  deputies.  The  philosopher  Kant  proposed  Confeder- 
ation of  States,  a permanent  congress  and  the  ultimate  aboli- 
tion of  standing  armies;  the  jurist  Bentham  not  only  proposed 
the  limitation  of  armaments,  but  a congress  or  international 
court  of  justice  for  the  settlement  of  international  disputes. 
These  various  projects,  however,  made  but  a limited  appeal. 
They  may  have  convinced  the  reason  of  the  select  few,  but  they 


THE  GENESIS  OF  THE  INTEENATIONAL  CONFERENCE  27 


had  made  no  impression  upon  the  public  at  large.  The  contri- 
butions of  William  Ladd,  James  Lorimer  and  Dr.  Bluntschli, 
belong  to  the  nineteenth  century.  The  work  of  Ladd  deserves 
examination  and  consideration  by  reason  of  its  prophecy  of  a 
conference  and  may  not  be  dismissed  with  a mere  mention. 

Mr.  Ladd’s  plan  for  the  establishment  of  a Congress  and  a 
Court  of  Nations  is  found  in  his  Essay  on  A Congress  of 
Nations,  published  in  Boston  in  the  year  1840,  and  it  is  not 
too  much  to  say  that  this  little  book  contains  within  its  covers 
and  within  singularly  narrow  compass  not  merely  the  argu- 
ments for,  but  the  arguments  against,  the  establishment  of 
both  institutions. 

A paragraph  from  the  introduction  to  this  masterpiece  and 
one  from  the  body  of  the  Essay  on  the  function  of  the  Congress 
of  Nations  are  all  that  can  be  quoted.  The  plan  consisted  of 
two  parts: 

1.  A congress  of  ambassadors  from  all  those  Christian  and 
civilized  nations  who  should  choose  to  send  them,  for  the  pur- 
pose of  settling  the  principles  of  international  law  by  compact 
and  agreement,  of  the  nature  of  a mutual  treaty,  and  also  of 
devising  and  promoting  plans  for  the  preservation  of  peace,  and 
meliorating  the  condition  of  man.^ 

In  the  following  passage  Mr.  Ladd  outlines  at  once  the  policy 
of  his  Congress  and  the  actual  program  of  the  Hague  Confer- 
ences : 

The  Congress  of  Nations  is  to  have  nothing  to  do  with  the 
internal  affairs  of  nations,  or  with  insurrections,  revolutions,  or 
contending  factions  of  people  or  princes,  or  with  forms  of 
government,  but  solely  to  concern  themselves  with  the  inter- 
course of  nations  in  peace  and  war.  1st.  To  define  the  rights 
of  belligerents  towards  each  other;  and  endeavor,  as  much  as 
possible,  to  abate  the  horrors  of  war,  lessen  its  frequency,  and 
promote  its  termination.  2d.  To  settle  the  rights  of  neutrals, 
and  thus  abate  the  evils  which  war  inflicts  on  those  nations  that 
are  desirous  of  remaining  in  peace.  3d.  To  agree  on  measures 
of  utility  to  mankind  in  a state  of  peace;  and  4th,  to  organize  a 
Court  of  Nations.  These  are  the  four  great  divisions  of  the 
labors  of  the  proposed  Congress  of  Nations.* 

* Ladd’s  Elssay  on  A Ckjngress  of  Nations,  p.  iv. 

’ Ibid.,  p.  16. 


28 


THE  HAGUE  PEACE  CONFERENCES 


The  resemblance  between  Ladd’s  project  and  the  Hague 
Conferences  is  so  patent  as  to  need  no  comment,  and  while  it 
would  be  an  exaggeration  to  insist  that  the  Conference  is  the 
direct  result  of  Ladd’s  Essay,  it  would  be  unfair  not  to  state 
that  Ladd’s  project  became  widely  known  in  America,  where 
public  opinion  was  created  in  its  behalf;  that  it  was  published 
in  England,  and  influenced  the  peace  movement  along  Ladd’s 
lines,  and  that  the  project  for  the  establishment  of  a Congress 
and  a Court  of  Nations  was,  by  the  faithful  disciple,  Elihu 
Burritt,  laid  before  the  various  Peace  Conferences  of  Brussels 
(1848),  Paris  (1849),  Frankfort  (1850),  and  London  (1851). 

It  is  perhaps  not  too  much  to  say  that  had  not  the  Crimean 
War  broken  out  in  the  fifties,  the  experiment  of  a conference 
would  have  been  tried  and  a permanent  court  established 
long  before  the  present  generation. 

As  it  is  important  to  show  the  steps  by  which  Ladd’s  pro- 
ject became  known,  I shall  quote  some  further  passages  from 
the  Essay  before  closing  with  a statement  from  Elihu  Burritt, 
which  would  seem  to  be  proof  positive  of  the  influence  of  Ladd 
upon  the  creation  of  the  means  whereby  international  peace  is 
to  be  secured  and  safeguarded. 

In  commenting  upon  Saint  Pierre’s  scheme.  Cardinal  Fleury 
pleasantly  told  the  author  that 

he  had  forgotten  one  preliminary  article,  which  was  the  delega- 
tion of  missionaries  to  dispose  the  hearts  of  the  princes  of  Europe 
to  submit  to  such  a diet.  ■ > 

To  which  Ladd  adds: 

The  peace  societies  must  furnish  these  missionaries,  and 
send  them  to  the  princes  in  monarchical  governments,  and  to 
the  people  in  mixed  and  republican  governments.  Let  public 
opinion  be  on  our  side,  and  missionaries  will  not  be  wanting.* 

And  again: 

Before  either  the  President  or  the  Congress  of  these  United 
States  will  act  on  this  subject,  the  sovereign  people  must  act, 
and  before  they  will  act,  they  must  be  acted  on  by  the  friends 

* Ladd’s  Essay  on  A Congress  of  Nations,  pp.  75-76. 


THE  GENESIS  OF  THE  INTERNATIONAL  CONFERENCE  29 


of  peace;  and  the  subject  must  be  laid  before  the  people,  in 
all  parts  of  our  country,  as  much  as  it  has  been  in  Massachu- 
setts, where  there  has,  probably,  been  as  much  said  and  done  on 
the  subject,  as  in  all  the  other  twenty-five  states  of  the  Union. 
When  the  whole  country  shall  understand  the  subject  as  well 
as  the  state  of  Massachusetts,  the  Congress  of  the  United  States 
will  be  as  favorable  to  a Congress  of  Nations  as  the  General 
Court  of  Massachusetts;  and  when  the  American  government 
shall  take  up  the  subject  in  earnest,  it  will  begin  to  be  studied 
and  understood  by  the  enlightened  nations  of  Europe.^ 

Mr.  Ladd  devoted  the  last  years  of  his  life  to  popularizing 
the  doctrines  of  his  Essay,  and  distributed  copies  of  it  to 

“the  crowned  heads  and  leading  men  of  Christendom,”  as  Mr. 
Burritt  says,  “with  all  the  glowing  zeal  and  activity  which  he 
brought  to  the  cause.  And  it  is  the  best  tribute  to  his  clear  ju- 
dicious mind  that  the  main  proposition  as  he  developed  it  has 
been  pressed  upon  the  consideration  of  the  public  mind  of  Christ- 
endom ever  since  his  day,  without  amendment,  addition,  or 
subtraction.”^ 

Mr.  Ladd  cherished  no  illusions.  He  believed  that  his 
plan  was  practical,  and  believing,  likewise,  that  it  was  wise 
and  just,  he  felt  that  it  could  wait  years,  if  need  be,  for  its 
realization,  and  that  repeated  failures  would  not  prevent  ulti- 
mate triumph.  For  example,  after  describing  the  attempts 
to  form  a Congress  of  Nations,  he  says: 

The  inference  to  be  deduced  ....  is,  that  the  gov- 
ernments of  Christendom  are  willing  to  send  delegates  to  any 
such  Congress,  whenever  it  shall  be  called  hy  a respectable  state, 
well  established  in  its  own  government,  if  called  in  a time  of 
peace,  to  meet  at  a proper  place.  That  this  attempt  at  a Con- 
gress of  Nations,  or  even  a dozen  more,  should  prove  abortive 
on  account  of  defects  in  their  machinery  or  materials,  ought 
not  to  discourage  us,  any  more  than  the  dozen  incipient  attempts 
at  a steamboat,  which  proved  abortive  for  similar  reasons, 
should  have  discouraged  Fulton.  Every  failure  throws  new 
light  on  this  subject,  which  is  founded  in  the  principles  of  truth 
and  equity.  Some  monarch,  president,  or  statesman — some 
moral  Fulton,  as  great  in  ethics  as  he  was  in  physics — ^will  yet 
arise,  and  complete  this  great  moral  machine,  so  as  to  make  it 
practically  useful,  but  improvable  by  coming  generations.  Be- 

' Ladd’s  Essay  on  A Congress  of  Nations,  p.  88. 

’ Hemenway’g  Life  of  William  Ladd.  p.  15, 


30 


THE  HAGUE  PEACE  CONFERENCES 


fore  the  fame  of  such  a man,  your  Csesars,  Alexanders,  and  Na- 
poleons will  hide  their  diminished  heads,  as  the  twinkling  stars 
of  night  fade  away  before  the  glory  of  the  full-orbed  lang  of 
dayd 

When  the  Conference  called  by  the  “respectable  state,” 
namely,  Russia,  shall  have  become  permanent  and  assemble 
periodically  to  correct  the  inequalities  and  deficiencies  of  the 
law  of  nations,  and  when  a court  of  nations  composed  of 
judges  exists  as  a permanent  institution  before  which  nations 
appear  as  suitors,  and  when  mankind,  accustomed  to  these 
institutions,  recognizes  their  importance,  the  name  of  William 
Ladd  will  undoubtedly  figure  among  the  benefactors  of  his 
kind. 

The  establishment  of  peace  societies  in  the  United  States, 
Great  Britain,  and  later,  upon  the  continent;  the  delivery 
of  addresses,  and  the  circulation  of  pamphlets  devoted  to  the 
cause,  familiarized  the  public  with  the  aims  and  purposes  of 
the  societies ; the  holding  of  the  great  peace  Conferences  organ- 
ized by  enthusiasts,  and  presided  over  by  publicists,  literateurs, 
and  scientists,  such  as  the  great  Conferences  of  Brussels  (1848), 
of  Paris  (1849),  under  the  presidency  of  Victor  Hugo;  of 
Frankfort  (1850);  and  of  London  (1851),  under  the  presidency 
of  Sir  David  Brewster,  to  all  of  which  were  presented  the  pro- 
ject for  a congress  of  nations  for  the  codification  of  interna- 
tional law  and  a court  of  nations  for  its  interpretation;  the 
organization  of  the  Interparliamentary  Union  in  1889,  with 
its  annual  reunions  since  that  date ; the  establishment  of  the 
Institute  of  International  Law  (1873)  for  the  discussion  of 
international  law  and  its  codification;  together  with  the  publi- 
cation of  the  Revue  de  Droit  International  et  de  Legislation 
Compar^e  (1869)  and  the  Annuaire  de  ITnstitut  as  organs  for 
the  movement,  as  well  as  the  organization  of  the  Interna- 
tional Law  Association  for  the  Reform  and  Codification  of  the 
Law  of  Nations  (1873)  furnish  examples  of  international  con- 
ferences and  reunions  in  which  grave  and  important  matters 

* Ladd’s  Essay  on  A Congress  of  Nations,  p.  70. 


THE  GENESIS  OF  THE  INTERNATIONAL  CONFERENCE  31 


could  be  discussed,  and  conclusions  reached,  and  the  activity 
of  learned  and  scientific  societies,  shows  the  possibility  of  a 
codification  of  international  law  in  the  light  of  theory  and 
practice.  The  repeated  discussion  of  arbitration  in  legislative 
assemblies;  the  success  of  arbitration  in  the  actual  settlement 
of  international  difficulties;  the  suggestion  of  disarmament 
or  a limitation  of  armament,  made  by  men  like  Bentham,‘ 
Sir  Robert  PeeP  and  Richard  Cobden  in  England,  by  Charles 
Sumner  in  the  United  States,®  and  prophesied  by  John  Bright 

* How  then  shall  we  concentrate  the  approbation  of  the  people,  and 
obviate  their  prejudices? 

One  main  object  of  the  plan  is  to  effectuate  a reduction,  and  that  a 
mighty  one,  in  the  contributions  of  the  people.  The  amount  of  the  reduc- 
tion for  each  nation  should  be  stipulated  in  the  treaty;  and  even  previous 
to  the  signature  of  it,  laws  for  the  purpose  might  be  prepared  in  each  nation, 
and  presented  to  every  other,  ready  to  be  enacted,  as  soon  as  the  treaty 
should  be  ratified  in  each  state. 

By  these  means  the  mass  of  the  people,  the  part  most  exposed  to  be 
led  away  by  prejudices,  would  not  be  sooner  apprised  of  the  measure,  than 
they  would  feel  the  relief  it  brought  them.  They  would  see  it  was  for  their 
advantage  it  was  calculated,  and  that  it  could  not  be  calculated  for  any 
other  purpose. — Bentham’s  Plan  for  a Universal  and  Perpetual  Peace, 
1789.  Bowring’s  Edition  of  Bentham’s  Works,  Vol.  II,  p.  553. 

^ “Is  not  the  time  come,”  said  Sir  Robert  “ when  the  powerful  coun- 
tries of  Europe  should  reduce  those  military  armaments  which  they  have 
so  sedulously  raised?  What  is  the  advantage  of  one  Power  greatly  increas- 
ing its  army  and  navy?  Does  it  not  see  that  if  it  possesses  such  increase 
for  self-protection  and  defense,  the  other  Powers  will  follow  its  example? 
The  consequence  of  this  state  of  things  must  be  that  no  increase  of  relative 
strength  will  accrue  to  any  one  Power,  but  there  must  be  a universal  con- 
sumption of  the  resources  of  every  country  in  military  preparation.  The 
true  interest  of  Europe  is  to  come  to  some  common  accord,  so  as  to  enable 
every  country  to  reduce  those  military  armaments  which  belong  to  a state 
of  war,  rather  than  of  peace.  I do  wish  that  the  councils  of  every  country, 
or  if  the  councils  will  not,  that  the  public  mind  and  voice  would  willingly 
propagate  such  a doctrine.” — Lorimer’s  Institutes  of  the  Law  of  Nations, 
Vol.  II,  Chap.  IX,  p.  246. 

And  see  Chap.  IX  of  the  second  volume  of  Lorimer’s  excellent  work 
dealing  with  the  question  of  proportional  disarmament,  to  which  the  reader’s 
attention  is  called. 

’ Charles  Sumner,  from  the  beginning  to  the  end  of  his  public  career, 
devoted  himself  to  the  question  of  disarmament,  the  establishment  of  a 
Congress  of  Nations,  and  the  abolition  of  war  by  means  of  an  international 
court  of  justice.  Reference  is  made  to  his  three  great  addresses:  The 


32 


THE  HAGUE  PEACE  CONFERENCES 


in  a notable  speech  in  Parliament;  the  growing  sense  of  the 
uselessness  of  war,  and  the  burden  of  an  armed  peace,  showed 
unmistakably  that  an  enlightened  international  public  opinion 
would  respond  to  a call  for  an  international  conference,  which, 
in  a time  of  peace,  would  consider  the  means  by  which  war 
might  be  humanized,  if  not  averted,  and  peace  preserved 
without  increasing  the  preparations  for  war.  The  question 
was  not  whether  such  a conference  should  meet,  but  who 
should  call  it. 

After  stating  that  “general  and  perpetual  treaties  might 
be  formed,  limiting  the  number  of  troops  to  be  maintained,” 
Bentham  declared  that  “whatsoever  nation  should  get  the 
start  of  the  other  in  making  the  proposal  to  reduce  and  fix  the 
amount  of  its  armed  force,  would  crown  itself  with  everlasting 
honour.  The  risk  would  be  nothing — ^the  gain  certain.  This 
gain  would  be,  the  giving  an  incontrovertible  demonstration 
of  its  own  disposition  to  peace,  and  of  the  opposite  disposition 
in  the  other  nation  in  case  of  its  rejecting  the  proposal.”' 

The  statesman  and  friend  of  peace,  John  Bright,  hoped  that 
his  country  might  have  the  honor  of  calling  the  conference.  In 
a speech  delivered  in  the  House  of  Commons  on  July  21,  1856, 
he  outlined,  in  a single  paragraph,  the  causes  which  have  led 
to  the  proposal  to  limit  armaments,  and  he  suggested  the 
means  by  which  armaments  might  be  reduced  by  international 
agreement.  Mr.  Bright  said: 

Success  in  war  no  longer  depends  on  those  circumstances 
that  formerly  decided  it.  Soldiers  used  to  look  down  on  trade, 
and  machine-making  was,  with  them,  a despised  craft.  No 

True  Grandeur  of  Nations  (1845),  The  War  System  of  the  Common- 
wealth of  Nations,  (1849),  The  Duel  between  France  and  Germany,” 
(1870) — in  which  he  exhausted  the  arguments  on  the  subject.  The  second 
part  of  his  masterly  address  on  The  War  System  enumerates  and  sum- 
marizes the  various  attempts  and  projects  made  for  the  establishment 
of  a Congress  of  Nations.  For  the  addresses  referred  to,  see  Sumner’s 
Addresses  on  War,  with  an  introduction  by  Edwin  D.  Mead,  published 
by  Ginn  & Company,  Boston,  1904. 

' Bentham’s  plan  for  a universal  and  perpetual  peace  (1789),  Bowring’s 
ed.  of  Bentham’s  Works,  Vol.  II,  p.  551. 


THE  GENESIS  OF  THE  INTERNATIONAL  CONFERENCE  33 


stars  or  garters,  no  ribbons  or  baubles  bedecked  the  makers  and 
workers  of  machinery.  But  what  is  war  becoming  now?  It 
depends,  not  as  heretofore,  on  individual  bravery,  on  the  power 
of  a man’s  nerves,  the  keenness  of  his  eye,  the  strength  of  his 
body,  or  the  power  of  his  soul,  if  one  may  so  speak;  b^ut  it  is  a 
mere  mechanical  mode  of  slaughtering  your  fellowmen.  This 
sort  of  thing  can  not  last.  It  will  break  down  by  its  own 
weight.  Its  costliness,  its  destructiveness,  its  savagery  will 
break  it  down;  and  it  remains  but  for  some  Government — I pray 
that  it  maybe  ours! — to  set  the  great  example  to  Europe  of 
proposing  a mutual  reduction  of  armaments.^ 

The  British  Government,  however,  did  not  grasp  the  oppor- 
tunity. Indeed,  when,  in  1863,  Napoleon  III  proposed  a con- 
ference to  consider,  among  other  things,  the  reduction  of  arma- 
ment,* Great  Britain  refused,  and  the  refusal  of  Great  Britain 
led  to  the  abandonment  of  the  project.  But  the  proposal  to 
call  a conference  had  been  made,  the  subject  was  familiar  to 
the  public,  and,  as  Mr.  William  Ladd  said  in  his  remark- 
able Essay  on  A Congress  of  Nations,  which  prophesied  in  its 
minutest  detail  the  calling,  the  organization,  and  the  procedure 
of  the  Hague  Conference,  the  precedents  showed  clearly  that 
a conference  would  meet  when  called  by  " a respectable  state.” 
Events  proved  the  truth  of  the  prophecy ; accident  determined 
that  Russia  should  be  the  “respectable  state,”  and  Nicholas 
II  the  man. 

What  made  the  ruler  of  an  autocratic  nation,  in  which  public 
opinion  scarcely  dared  whisper,  the  mouthpiece  of  enlightened 
public  sentiment?  Various  suggestions  have  been  made.  In 
opening  the  first  conference,  the  Dutch  Minister  of  Foreign 
Affairs  attributed  the  calling  of  the  Conference  to  the  traditions 
of  the  Czar’s  imperial  house,  which  statement  was  referred  to 
with  satisfaction  in  the  closing  presidential  address  of  Baron 


‘ Hansard’s  Parliamentary  Debates,  Third  Series,  Vol.  155,  p.  199; 
Bright’s  Speeches,  edited  by  Rogers,  Vol.  II,  p.  413. 

^ Lorimer’s  Institutes  of  the  Law  of  Nations,  Vol.  II,  p.  247;  Annales  du 
e^nat  et  du  Corps  l^gislatif,  1864,  pp.  5-7.  Archives  diplomatiques,  1863, 
Vol.  IV,  pp.  188-189;  Pingaud’s  Napoleon  III  et  le  d4sarmement.  Revue 
de  Paris  (May  15,  1899). 


34 


THE  HAGUE  PEACE  CONFERENCES 


de  Staal.^  It  has  been  said  that  the  late  M.  de  Bloch  influenced 
the  Czar  against  the  increase  of  armaments  and  laid  before  his 
eyes  the  horrors  of  war  in  such  a way  as  to  induce,  or  to  pre- 
dispose the  Czar  to  call  the  Conference.  Again,  it  is  pointed 
out  that  the  Czar  is  preeminently  a man  of  peace,  and  that  he 
has  more  than  a touch,  in  his  make-up,  of  his  ancestor  Alexan- 
der I,  who  not  merely  dreamed  of  a Holy  Alliance,  but  estab- 
lished one  in  order  to  maintain  the  peace  of  the  world.  It 
may  be  admitted  that  any  one  or  all  of  these  suggestions  is 
correct,  and  that  singly  or  collectively  they  sufficiently  account 
for  the  action  of  the  Czar.  But  the  question  remains.  Why 
was  the  Conference  called  in  1898?  for,  if  it  depended  solely 
upon  the  Czar,  it  might  have  been  called  earlier,  for  public 
opinion  was  ripe  before  the  Czar  was  born,  or  might  have 
been  called  later,  for  this  same  public  opinion  would  have  been 
as  insistent  in  the  beginning  of  the  twentieth  century  as  at  the 
close  of  the  nineteenth. 

To  this  question  no  satisfactory  answer  has  been  given  and 
the  origin  of  this  great  and  beneficent  Conference  lies  hidden 
until  he  who  called  it  cares  to  speak. 

' F.  de  Martens’  Question  du  desarmement  entre  la  Russie  et  I’Angle- 
terre,  Revue  de  droit  international  et  de  legislation  compar^e,  1894,  Vol. 
XXXI,  pp.  573,  et  seq. 

See  also  Actes  et  Documents  relatifs  au  programme  de  la  Conference 
de  la  Paix,  1899,  Section  A,  for  expressions  of  statesmen  and  publicists 
about  disarmament. 


CHAPTER  II 


GENERAL  SURVEY  OF  THE  FIRST  PEACE 
CONFERENCE 

1.  Nature  and  Purpose  of  a Conference 

It  has  been  previously  stated  that  the  development  of  com- 
mon law  is  accelerated  by  statute  and  that  the  common  law 
of  nations,  composed  of  usage  and  custom,  recognized  and 
applied  as  law,  has  been  developed  and  accelerated  by  analogy 
with  the  common  law  by  means  of  treaties,  compacts  of  inter- 
ested powers,  and  finally  by  international  conferences.  An 
attempt  was  made  to  show  that  conferences  in  the  past  usually 
met  at  the  close  of  war  to  adjust  its  immediate  causes  and  to 
lay  foundations  for  future  and  permanent  peace;  that  in 
recent  years  general  stipulations  at  conferences  had  become 
more  frequent;  that  in  very  recent  periods  conferences  had 
met  without  the  mission  to  conclude,  but  to  preserve,  peace, 
or  to  regulate  and  ameliorate  warfare,  such  as  the  Geneva  Con- 
ventions of  1864  and  1868,  St.  Petersburg  Convention  of  1868, 
the  Brussels  Conference  of  1874;  that  unofficial  congresses, 
private  bodies,  and  learned  societies,  as  well  as  individual 
writers  of  authority  had  forwarded  the  movement  and  shown 
the  possibilities  of  conferences  called  for  the  purpose  of  dis- 
cussing and  regulating,  during  the  existence  of  peace,  questions 
of  grave  international  concern,  so  that  differences  of  practice 
might  be  reconciled  or  give  way  to  uniformity,  and  that  the 
law  of  nations  be  codified  by  international  agreement. 

It  must  not,  however,  be  forgotten  that  great — ^indeed 
radical  and  essential — differences  exist  between  a parliament 
and  a diplomatic  assembly.  A parliament  legislates  for  a 
nation,  and  by  means  of  proper  representatives,  it  legislates 
for  the  various  component  parts  of  the  nation.  International 


35 


36 


THE  HAGUE  PEACE  CONFERENCES 


conferences  in  which  the  nations  of  the  world  are  represented, 
recommend  to  the  nations  represented,  or  legislate  for  them 
ad  referendum.  A parliament  presupposes  subordination; 
a conference  equality.  A parliament  binds  the  dependent; 
a conference  recommends  to  the  equal  and  independent  na- 
tions. Differing  in  their  origin  and  in  their  results,  their  pro- 
cedure must  likewise  differ.  The  parliament,  by  means  of 
majorities,  decrees  or  issues  a law;  the  conference,  by  means 
of  unanimous  agreement,  presents  to  the  nations  represented 
a draft  which,  when  ratified  by  the  nations,  becomes  by  the 
approval  of  the  internal  and  the  constitutional  organs,  the 
law  of  the  ratifying  nation.  When  ratified  by  the  nations 
as  a whole,  it  becomes  jus  inter  gentes,  that  is,  international 
law  in  the  strict  sense  of  the  word. 

Gradually  and  unconsciously,  perhaps,  we  have  left  the 
customary  development  of  international  law  and  we  resort 
to  the  international  statute  just  as  we  enact  the  legislative 
statute  in  order  to  modify  or  develop  the  common  or  muni- 
cipal law. 

An  international  conference  is,  therefore,  an  assembly 
composed  of  representatives  of  the  States  accepting  and  apply- 
ing in  their  intercourse  the  principles  of  international  law, 
and  in  this  assembly  each  nation  represented  is  considered  a 
unit  and  votes  as  a unit,  although  its  delegates  may  be  many 
or  few.  While  it  is,  in  one  sense  of  the  word,  a deliberative 
body,  it  is  not  a parliament.  Majorities  show  undoubtedly 
the  trend  of  international  feeling;  but,  each  nation,  being 
independent  and  charged  with  the  preservation  of  its  own 
existence,  must  judge  for  itself  whether  the  conclusion  of  the 
majority  is  advantageous  or  detrimental  either  to  its  existence 
or  legitimate  interests.  The  majority  may  give  pause  and 
cause  a State  in  the  minority  to  reconsider  its  position  in 
order  to  see  whether  what  the  many  desire  is  not  also  desirable 
for  the  few.  Majorities,  therefore,  exist,  but  they  exercise  a 
a moral  influence;  they  do  not  coerce.  At  most  the  decree 
or  resolution  of  a majority  binds  the  majority;  it  does  not, 
and,  under  existing  conditions,  it  can  not  well  control  an 
individual  State. 


GENERAL  SURVEY  OF  THE  FIRST  PEACE  CONFERENCE  37 


A conference,  then,  is  a diplomatic  assembly,  and  the  mem- 
bers of  the  conference  represent  diplomatically  their  respective 
nations.  It  is  the  nation  that  speaks,  not  the  individual, 
who  expresses  an  opinion,  albeit  this  individual,  by  reason 
of  his  experience  and  ability,  as  well  as  the  confidence  which 
his  character  inspires,  may  exert  a great  personal  influence 
not  only  in  the  deliberations  but  in  the  conclusions  ultimately 
reached. 

As  international  law  is  based  upon  the  legal  equality  of 
States,  it  necessarily  follows  that  each  State  has  an  equal 
vote.  But  while  States  are,  legally  speaking,  equal,  we  know 
that  in  the  world  of  affairs  they  do  not  possess  equal  influence. 
It  is  an  axiom  that  men  are  created  equal,  but  we  interpret 
this  equality,  and  properly,  as  an  equality  of  legal  right,  as 
equality  before  the  law.  We  do  not  mean  that  there  is  not 
and  can  not  be  a difference  in  the  individual  caliber  and  ability 
of  the  man,  and  just  as  this  man  develops  himself  and  acquires 
influence  and  standing,  so  the  nation,  by  husbanding  its  re- 
sources and  making  a wise  use  of  them,  acquires  standing  and 
leadership  in  the  family  of  nations.  While,  therefore,  the 
conference  admits  the  equality  of  nations,  and  while  each 
nation  thus  responds  to  the  roll-call,  Montenegro  and  Luxem- 
burg influencing  the  vote  as  profoundly  as  Russia  and  Ger- 
many, the  support  of  the  larger  nations  is  necessary  in  order 
to  give  international  force  and  effect  to  a proposition  before  it. 
For  example;  the  attitude  of  Great  Britain  in  maritime  law  is 
controlling,  and  the  view  of  Germany  on  the  rights  and  duties 
of  neutrals  in  time  of  war  must  carry  great  weight.  In  other 
words,  equality  of  vote  is  not  equality  of  influence. 

The  purpose  of  a conference  is  to  reconcile  divergent  views, 
and,  by  conciliation  and  renunciation  if  necessary,  to  produce 
substantial  agreement.  This  often  means  that  progressive 
measures  are  discarded  for  more  moderate  formulas,  just 
as  the  advanced  guard  of  an  army  halts  that  the  laggard 
may  catch  up;  for  the  purpose  is  not  to  secure  'the  assent  of 
the  few  but  to  bind  the  many,  and  it  is  better  to  make  haste 
slowly  than  by  an  excessive  zeal  to  make  no  progress.  The 


38 


THE  HAGUE  PEACE  CONFERENCES 


result  of  a conference,  therefore,  is  often  strangely  at  variance 
with  its  program.  The  sweeping  reforms  of  the  enthusiast 
are  brushed  aside,  and  in  their  place  tentative  measures, 
timid  measures  perhaps,  appear;  but  we  must  not  forget  that  a 
step  in  advance  is  still  a step  in  advance,  and  that  the  failure 
of  today  is  the  success  of  the  morrow. 

In  order  that  a conference  may  be  a success,  nations  should 
not  only  be  willing  to  accept  compromises  and  act  in  the  spirit 
of  compromise,  but  they  should,  in  advance  of  the  conference, 
decide  what  interests  they  may  safely  renounce  in  the  interest 
of  all,  rather  than,  by  a rigid  attitude,  endeavor  to  secure 
international  recognition  of  national  interests.  The  general 
interests  of  humanity  exceed  the  interest  of  any  one  nation, 
however  powerful,  and  just  as  society  strips  man  of  his  abso- 
lute rights  as  an  individual,  so  the  members  of  the  family  of 
nations  must  be  prepared  to  renounce  absolute  rights  in  the 
interest  of  international  harmony.  As  our  Secretary  of  State 
said  in  his  instructions  to  the  American  Delegation: 

In  the  discussions  upon  every  question,  it  is  important  to 
remember  that  the  object  of  the  Conference  is  agreement,  and 
not  compulsion.  If  such  conferences  are  to  be  made  occasions 
for  trying  to  force  nations  into  positions  which  they  consider 
against  their  interests,  the  Powers  can  not  be  expected  to  send 
representatives  to  them.  It  is  important  also  that  the  agree- 
ments reached  shall  be  genuine  and  not  reluctant;  otherwise 
they  will  inevitably  fail  to  receive  approval  when  submitted 
for  the  ratification  of  the  Powers  represented.  Comparison  of 
views  and  frank  and  considerate  explanation  and  discussion 
may  frequently  resolve  doubts,  obviate  difficulties,  and  lead  to 
real  agreement  upon  matters  which  at  the  outset  have  appeared 
insurmountable.  It  is  not  wise,  however,  to  carry  this  process 
to  the  point  of  irritation.  After  reasonable  discussion,  if  no 
agreement  is  reached,  it  is  better  to  lay  the  subject  aside,  or 
refer  it  to  some  future  conference  in  the  hope  that  intermediate 
consideration  may  dispose  of  the  objections.  Upon  some  ques- 
tions where  an  agreement  by  only  a part  of  the  Powers  repre- 
sented would  in  itself  be  useful,  such  an  agreement  may  be 
made,  but  it  should  always  be  with  the  most  unreserved  recog- 
nition that  the  other  Powers  withhold  their  concurrence  with 
equal  propriety  and  right. 

The  immediate  results  of  such  a conference  must  always  be 
limited  to  a small  part  of  the  field  which  the  more  sanguine 


GENERAL  SURVEY  OF  THE  FIRST  PEACE  CONFERENCE  39 


have  hoped  to  see  covered;  but  each  successive  conference  will 
make  the  positions  reached  in  the  preceding  conference  its 
points  of  departure,  and  will  bring  to  the  consideration  of  fur- 
ther advances  towards  international  agreement  opinions  affected 
by  the  acceptances  and  application  of  the  previous  agree- 
ments. Each  conference  will  inevitably  make  further  progress 
and,  by  successive  steps,  results  may  be  accomplished  which 
have  formerly  appeared  impossible.^ 

2.  Calling  of  the  Conference 

It  is  difldcult  to  determine  whether  the  call  issued  for  a con- 
ference to  consider  disarmament  and  assure  peace  was  due  in 
part  to  a feeling  that  international  precedent  justified  the  call- 
ing of  such  a conference,  or  that  public  opinion,  fostered  by 
advanced  spirits  in  various  parts  of  the  world,  urged  it,  or 
that,  finally,  the  gentle  and  humanitarian  nature  of  the  Czar 
prompted  him,  inspired  by  the  traditions  of  his  imperial  house, 
to  lessen  the  burdens  under  which  nations  are  groaning  by  vir- 
tue of  an  armed  peace. ^ It  is  probable  that  all  three  reasons 
exercised  an  influence,  the  happy  result  of  which  was  the 
imperial  rescript  dated  August  12/24,  1898,  handed  by  Count 
Mouravieff,  Russian  Minister  of  Foreign  Affairs,  to  the  diplo- 
matic representatives  accredited  to  the  court  of  St.  Peters- 
burg: 

The  maintenance  of  general  peace,  and  a possible  reduction 
of  the  excessive  armaments  which  weigh  upon  all  nations,  pre- 
sent themselves  in  the  existing  condition  of  the  whole  world,  as 
the  ideal  towards  which  the  endeavors  of  all  Governments  should 
be  directed. 

The  humanitarian  and  magnanimous  ideas  of  His  Majesty, 
the  Emperor,  my  August  Master,  have  been  won  over  to  this 
view.  In  the  conviction  that  this  lofty  aim  is  in  conformity 
with  the  most  essential  interests  and  the  legitimate  views  of  all 

1 Vol.  n,  pp,  183-184. 

^ Under  date  of  September  3,  1898,  Mr.  Hitchcock,  ambassador  to 
Russia,  gave  the  Secretary  of  State  the  substance  of  an  interview  with 
Count  Mouravieff,  in  which  the  latter  is  reported  as  stating  that  “His 
Imperial  Highness  and  his  Excellency  (Count  Mouravieff)  are  alone 
responsible  for  the  invitation,  which  was  unknown  to  any  other  govern- 
ment or  individual  previous  to  its  issue. ’’-—Foreign  Relations,  1898,  p. 
543. 


40 


THE  HAGUE  PEACE  CONFERENCES 


Powers,  the  Imperial  Government  thinks  that  the  present 
moment  would  be  very  favorable  for  seeking,  by  means  of  inter- 
national discussion,  the  most  effectual  means  of  insuring  to  all 
peoples  the  benefits  of  a real  and  durable  peace,  and,  above  all, 
of  putting  an  end  to  the  progressive  dvelopment  of  the  pres- 
ent armaments. 

In  the  course  of  the  last  twenty  years  the  longings  for  a 
general  appeasement  have  become  especially  pronounced  in 
the  consciences  of  civilized  nations.  The  preservation  of  peace 
has  been  put  forward  as  the  object  of  international  policy;  in  its 
name  great  States  have  concluded  between  themselves  powerful 
alliances;  it  is  the  better  to  guarantee  peace  that  they  have 
developed,  in  proportions  hitherto  unprecedented,  their  mili- 
tary forces,  and  still  continue  to  increase  them  without  shrink- 
ing from  any  sacrifice. 

All  these  efforts  nevertheless  have  not  yet  been  able  to 
bring  about  the  beneficent  results  of  the  desired  pacification. 
The  financial  charges  following  an  upward  march  strike  at 
the  public  prosperity  at  its  very  source. 

The  intellectual  and  physical  strength  of  the  nations,  labor 
and  capital  are  for  the  major  part  diverted  from  their  natural 
application,  and  unproductively  consumed.  Hundreds  of  mil- 
lions are  devoted  to  acquiring  terrible  engines  of  destruction, 
which,  though  today  regarded  as  the  last  word  of  science,  are 
destined  tomorrow  to  lose  all  value  in  consequence  of  some 
fresh  discovery  in  the  same  field. 

National  culture,  economic  progress,  and  the  production  of 
wealth  are  either  paralyzed  or  checked  in  their  development. 
Moreover,  in  proportion  as  the  armaments  of  each  Power 
increase  so  do  they  less  and  less  fulfill  the  object  which  the 
Governments  have  set  before  themselves. 

The  economic  crises,  due  in  great  part  to  the  system  of 
armaments  d I’outrance,  and  the  continual  danger  which  lies  in 
this  massing  of  war  material,  are  transforming  the  armed  peace 
of  our  days  into  a crushing  burden,  which  the  peoples  have 
more  and  more  difficulty  in  bearing.  It  appears  evident,  then, 
that  if  this  state  of  things  were  prolonged,  it  would  inevitably 
lead  to  the  very  cataclysm  which  it  is  desired  to  avert,  and  the 
horrors  of  which  make  every  thinking  man  shudder  in  advance. 

To  put  an  end  to  these  incessant  armaments  and  to  seek  the 
means  of  warding  off  the  calamities  which  are  threatening  the 
whole  world, — such  is  the  supreme  duty  which  is  today  imposed 
on  all  States. 

Filled  with  this  idea,  His  Majesty  has  been  pleased  to 
order  me  to  propose  to  all  the  Governments  whose  representa- 
tives are  accredited  to  the  Imperial  Court,  the  meeting  of  a 
conference  which  would  have  to  occupy  itself  with  this  grave 
problem. 


GENERAL  SURVEY  OF  THE  FIRST  PEACE  CONFERENCE  41 


This  Conference  should  be,  by  the  help  of  God,  a happy 
presage  for  the  century  which  is  about  to  open.  It  would  con- 
verge in  one  powerful  focus  the  efforts  of  all  States  which  are 
sincerely  seeking  to  make  the  great  idea  of  universal  peace  tri- 
umph over  the  elements  of  trouble  and  discord. 

It  would,  at  the  same  time,  confirm  their  agreement  by  the 
solemn  establishment  of  the  principles  of  justice  and  right, 
upon  which  repose  the  security  of  States  and  the  welfare  of 
peoples.^ 

We  can  well  understand  and  share  the  views  of  the  Amer- 
ican ambassador  in  his  note  transmitting  the  Russian  commu- 
nication: 

The  high  and  humanitarian  importance  of  this  document 
can  not  fail  to  recommend  it  to  the  absorbing  interest  of  the 
President  and  people  of  the  United  States,  and  the  fact  that 
Russia  is  the  fii’st  to  take  a step  in  the  direction  of  a general 
disarmament,  and  toward  that  universal  peace  which  all  Chris- 
tian peoples  must  regard  as  the  haven  to  which  Christian  progress 
ought  to  tend,  places  her  in  the  very  front  rank  of  the  civilized 
nations  of  the  world,  a position  on  which  I did  not  hesitate  to 
congratulate  his  excellency,  in  full  confidence  of  the  entire  sym- 
pathy of  our  Government  with  the  high  aim  to  which  the  docu- 
ment gives  expression.* 

* Holls’  Peace  Conference  at  The  Hague,  pp.  8-10. 

^ Foreign  Relations,  1898,  pp.  540-541. 

The  following  extracts  from  Foreign  Relations  of  1898,  pp.  542-544,  are 
of  interest: 

Count  Mouravieff  today  gave  me  his  conference  program  as  follows: 
First,  no  political  nor  diplomatic  question — past,  present,  or  future — will 
be  discussed;  second,  no  secret  suggestions  or  arrangements  will  be  per- 
mitted, and  sessions  of  conference  to  be  open  and  public;  third,  present 
armaments  not  to  be  considered  or  disturbed,  but  if  possible  find  way  to 
avoid  further  increase;  fourth,  sole  object  exchange  of  ideas  in  furtherance 
of  national  economy  and  international  peace  in  the  interest  of  humanity 
as  the  supreme  duty  of  governments;  fifth,  nothing  binding  on  any  power, 
but  has  great  hopes  discussions  will  warrant  and  secure  appointment  by 
conference  of  expert  commission  to  further  consider  and  formulate  methods 
for  accomplishing  desired  results;  sixth,  time  and  place  of  conference  to  be 
determined  by  Powers  accepting  invitation;  seventh,  he  understands  and 
appreciates  position  of  our  Government,  but  desires  its  counsel,  advice,  and 
sympathy;  eighth,  His  Imperial  Majesty  and  his  excellency  are  alone 
responsible  for  the  invitation,  which  was  unknown  to  any  other  govern- 
ment or  individual  previous  to  its  issue;  ninth,  English,  German,  French, 


42 


THE  HAGUE  PEACE  CONFERENCES 


An  analysis  of  this  remarkable  document  shows  that  the 
thought  uppermost  in  the  mind  of  the  Czar  was  the  mainte- 
nance of  general  peace  and  with  this  phrase  the  document 
begins.  The  means  proposed  to  produce  this  peace  were  the 
possible  reduction  of  excessive  armaments  and,  it  would  seem 
from  the  introductory  paragraph  that  the  ideal  toward  which 
the  endeavor  of  all  Governments  should  be  directed  was  the 
maintenance  of  this  general  peace  by  a reduction  of  the  exces- 
sive armaments  which  weigh  upon  all  nations.  Not  only  is 
this  the  ideal  toward  which  nations  should  strive,  but  it  is  the 
supreme  duty  imposed  upon  all  States;  for,  in  a later  para- 
graph, the  purpose  of  the  rescript  is  said  to  be  “ to  put  an  end 
to  these  incessant  armaments  and  to  seek  the  means  of  ward- 

Austrian,  and  Italian  ambassadors  have  personally  and  officially  expressed 
the  sympathy  of  their  respective  governments,  whose  official  reply  to 
invitation  will  follow.  Hitchcock. 

Telegram  as  to  disarmament  received.  Though  war  with  Spain  renders 
it  impracticable  for  us  to  consider  the  present  reduction  of  our  armaments, 
which  even  now  are  doubtless  far  below  the  measure  which  principal  Euro- 
pean powers  would  be  willing  to  adopt,  the  President  cordially  concurs  in 
the  spirit  of  the  proposal  of  His  Imperial  Majesty,  and  will  send  a repre- 
sentative to  the  international  conference.  Moore,  Acting. 

Sir:  1 have  the  honor  to  report  having  on  yesterday  afternoon  read 
Mr.  Moore’s  telegram  dated  the  6th  instant,  the  receipt  of  which  was  ac- 
knowledged by  my  No.  143,  dated  the  7th  instant,  to  the  Imperial  Minister 
of  Foreign  Affairs,  Count  Mouiavieff,  who  requested  me  to  convey  to  the 
President  his  sincere  thanks  and  high  appreciation  for  his  cordial  concur- 
rence in  the  spirit  of  the  proposal  of  His  Imperial  Majesty,  as  well  as  for 
his  expressed  intention  to  send  a representative  to  the  international  con- 
ference. 

At  the  request  of  his  excellency,  I left  a copy  of  the  telegram  with  him 
for  repetition  to  wire  to  His  Imperial  Maesty  the  Emperor,  who  is  now  at 
the  Crimea. 

I also  availed  of  the  opportimity  to  read  to  his  excellency  a copy  of  my 
telegram  to  you  dated  the  3d  instant,  which  he  affirmed  as  an  entirely 
correct  summary  of  the  lengthened  interview  I had  just  had  with  him  with 
reference  to  the  proposed  international  conference. 

Ethan  A.  Hitchcock. 

For  the  impression  produced  by  the  publication  of  the  Rescript  see  the 
interesting  and  valuable  dispatch  of  November  9,  1898,  from  Mr.  Herbert 
H.  D.  Pierce,  charg6  d’affaires  of  the  United  States  to  Russia,  Foreign 
Relations,  1898,  pp.  546-549. 


GENERAL  SURVEY  OF  THE  FIRST  PEACE  CONFERENCE  43 


ing  off  the  calamities  which  are  threatening  the  whole  world — 
such  is  the  supreme  duty  which  is  today  imposed  on  all  States.” 
The  rescript  recognized  the  fact  patent  to  all  observers  that 
the  world  is  closely  knit  together  and  that  the  interests  of  all, 
notwithstanding  different  degrees  of  development  and  local 
conditions,  are  practically  and  substantially  the  same.  It 
further  recognizes  the  fact,  that  the  interest  of  all  would  be 
enhanced  by  the  discussion  of  that  which  is  common  to  all, 
and  that,  as  a result  of  a well-nigh  universal  exchange  of  views, 
there  might  be  and  should  be  a general  agreement  by  which 
the  right  established  would  be  safeguarded  in  practice.  For 
the  rescript  concludes: 

It  [the  conference]  would  at  the  same  time  confirm  their  agree- 
ment by  the  solemn  establishment  of  the  principles  of  justice 
and  right,  upon  which  repose  the  security  of  States  and  the  wel- 
fare of  peoples. 


An  international  agreement  was  the  desideratum  and  in 
justifying  the  calling  of  the  Conference  direct  reference  was 
made  to  the  classic  precedents  of  the  nineteenth  century. 


The  intention  of  the  Circular  is  precisely  to  provide  for  a 
full  and  searching  investigation  of  this  question  by  an  inter- 
national exchange  of  views.  Certain  other  questions  diflficult 
of  solution,  but  of  not  less  moment,  have  already  been  settled 
in  this  century  in  a manner  which  has  done  justice  to  the 
great  interests  of  humanity  and  civilization.  The  results  which 
in  this  connection  have  been  obtained  at  international  con- 
ferences, particularly  at  the  Congresses  of  Vienna  and  Paris, 
prove  what  the  united  endeavors  of  Governments  can  achieve 
when  they  proceed  in  harmony  with  public  opinion  and  the 
needs  of  civilization.^ 

The  original  rescript  dwelt  exclusively  upon  the  necessity 
of  maintaining  peace  and  suggested  in  no  uncertain  terms  the 
reduction  of  armaments,  if  it  did  not  propose  in  express  terms 


‘ From  an  official  communication  appearing  in  the  Journal  de  St.  Peters- 
burg. September  4,  1898.  Quoted  from  Holls’  Peace  Conference  at  The 
Hague,  1900,  p.  13. 


44 


THE  HAGUE  PEACE  CONFEKENCES 


disarmament.  Yet  the  latter  would  seem  to  be  a logical  con- 
sequence, for  if  the  increase  of  armament  is  a burden,  and  there- 
fore an  injury,  the  decrease  of  armaments  would  be  an  advan- 
tage; the  greater  the  decrease,  the  greater  the  advantage,  and 
the  more  certain  the  maintenance  of  peace.  It  must  have 
been  evident  to  the  Czar  and  his  advisers  that,  however  advan- 
tageous universal  disarmament  or  its  limitation  might  be, 
and  however  desirable  a careful  and  thorough  discussion  of 
the  subject  might  be,  limitation  of  armaments  could  not  be 
brought  about  at  any  one  conference,  and  that  a conference 
restricted  to  the  discussion  of  disarmament  or  the  reduction 
of  armaments,  while  resulting  in  an  exchange  of  views,  would 
be  doomed  to  disappointment  and  failure.  The  suggestion, 
however,  of  one  means  of  maintaining  peace  does  not  neces- 
sarily exclude  other  means,  and  therefore  in  announcing  the 
acceptance  of  the  invitation  to  an  international  conference 
and  the  willingness  to  discuss  the  subject  of  armaments, 
the  Czar  took  occasion,  while  keeping  the  original  call  of  the 
Conference  in  the  foreground,  to  enlarge  the  scope  of  the  call 
in  such  a way  as  to  include  other  means  of  attaining  the 
general  end  for  which  public  opinion  seemed  ripe.  But  in 
enlarging  the  program,  the  Czar  felt  the  necessity  of  excluding 
from  discussion  questions  which  do  not  fall  directly  within 
the  program  of  the  amended  call, and  to  eliminate  “all  ques- 
tions concerning  the  political  relations  of  States,  and  the  order 
of  things  established  by  treaties,”  lest  the  Conference  assembled 
for  a humanitarian  purpose  might  insensibly  be  transformed 
into  a political  assembly. 

Therefore,  on  January  11,  1899/December  30,  1898,  Count 
Mouravieff  issued  a second  circular,  which,  while  reaffirming 
the  views  expressed  in  the  Imperial  rescript,  not  only  enlarged 
the  scope  of  the  Conference,  but  furnished  a program  for  its 
labors : 

When,  in  the  month  of  August  last,  my  August  Master 
instructed  me  to  propose  to  the  Governments  which  have 
Representatives  in  St.  Petersburg  the  meeting  of  a Conference 
with  the  object  of  seeking  the  most  efficacious  means  for  assur- 


GENERAL  SURVEY  OF  THE  FIRST  PEACE  CONFERENCE  45 


ing  to  all  peoples  the  blessings  of  real  and  lasting  peace,  and, 
above  all,  in  order  to  put  a stop  to  the  progressive  develop- 
ment of  the  present  armaments,  there  appeared  to  be  no  obsta- 
cle in  the  way  of  the  realization,  at  no  distant  date,  of  his  human- 
itarian scheme. 

The  cordial  reception  accorded  by  nearly  all  the  Powers  to 
the  step  taken  by  the  Imperial  Government  could  not  fail  to 
strengthen  this  expectation.  While  highly  appreciating  the 
sympathetic  terms  in  which  the  adhesions  of  most  of  the  Powers 
were  expressed,  the  Imperial  Cabinet  has  been  also  able  to  col- 
lect, with  lively  satisfaction,  evidence  of  the  warmest  approval- 
which  has  reached  it,  and  continues  to  be  received,  from  all 
classes  of  society  in  various  parts  of  the  globe. 

Notwithstanding  the  strong  current  of  opinion  which  exists 
in  favor  of  the  ideas  of  general  pacification,  the  political  hori- 
zon has  recently  undergone  a decided  change.  Several  Powers 
have  undertaken  fresh  armaments,  striving  to  increase  further 
their  military  forces,  and  in  the  presence  of  this  uncertain  situa- 
tion, it  might  be  asked  whether  the  Powers  considered  the 
present  moment  opportune  for  the  international  discussion  of  the 
ideas  set  forth  in  the  Circular  of  August  12  (24,  0.  S.). 

In  the  hope,  however,  that  the  elements  of  trouble  agitating 
political  centers  will  soon  give  place  to  a calmer  disposition  of 
a nature  to  favor  the  success  of  the  proposed  Conference,  the 
Imperial  Government  is  of  opinion  that  it  would  be  possible  to 
proceed  forthwith  to  a preliminary  exchange  of  ideas  between 
the  Powers,  with  the  object: 

(o)  Of  seeking  without  delay  means  for  putting  a limit 
to  the  progressive  increase  of  military  and  naval  armaments, 
a question  the  solution  of  which  becomes  evidently  more  and 
more  urgent  in  view  of  the  fresh  extension  given  to  these  arma- 
ments; and 

(6)  Of  preparing  the  way  for  a discussion  of  the  questions 
relating  to  the  possibility  of  preventing  armed  conflicts  by  the 
pacific  means  at  the  disposal  of  international  diplomacy. 

In  the  event  of  the  Powers  considering  the  present  moment 
favorable  for  the  meeting  of  a Conference  on  these  bases,  it 
would  certainly  be  useful  for  the  Cabinets  to  come  to  an  under- 
standing on  the  subject  of  the  program  of  their  labors. 

The  subjects  to  be  submitted  for  international  discussion  at 
the  Conference  could,  in  general  terms,  be  summarized  as 
follows: 

1.  An  understanding  not  to  increase  for  a fixed  period  the 
present  effective  of  the  armed  military  and  naval  forces,  and  at 
the  same  time  not  to  increase  the  Budgets  pertaining  thereto; 
and  a preliminary  examination  of  the  means  by  which  a reduc- 
tion might  even  be  effected  in  future  in  the  forces  and  Budgets 
above  mentioned. 


46 


THE  HAGUE  PEACE  CONFERENCES 


2.  To  prohibit  the  use  in  the  armies  and  fleets  of  any  new 
kind  of  firearms  whatever,  and  of  new  explosives,  or  any  pow- 
ders more  powerful  than  those  now  in  use,  either  for  rifles  or 
cannon. 

3.  To  restrict  the  use  in  military  warfare  of  the  formidable 
explosives  already  existing  and  to  prohibit  the  throwing  of  pro- 
jectiles or  explosives  of  any  kind  from  balloons  or  by  any  similar 
means. 

4.  To  prohibit  the  use,  in  naval  warfare,  of  submarine 
torpedo  boats  or  plungers,  or  other  similar  engines  of  destruc- 
tion; to  give  an  undertaking  not  to  construct,  in  the  future, 
vessels  with  rams. 

5.  To  apply  to  naval  warfare  the  stipulations  of  the  Geneva 
Convention  of  1864,  on  the  basis  of  the  additional  Articles  of 
1868. 

6.  To  neutralize  ships  and  boats  employed  in  saving  those 
overboard  during  or  after  an  engagement. 

7.  To  revise  the  Declaration  concerning  the  laws  and  cus- 
toms of  war  elaborated  in  1874  by  the  Conference  of  Brussels, 
which  has  remained  unratified  to  the  present  day. 

8.  To  accept  in  principle  the  employment  of  good  offices, 
of  mediation  and  facultative  arbitration  in  cases  lending  them- 
selves thereto,  with  the  object  of  preventing  armed  conflicts 
between  nations;  to  come  to  an  understanding  with  respect 
to  the  mode  of  applying  these  good  oflflces,  and  to  establish  a 
uniform  practice  in  using  them. 

It  is  well  understood  that  all  questions  concerning  the  politi- 
cal relations  of  States,  and  the  order  of  things  established  by 
Treaties,  as  in  general  all  questions  which  do  not  directly  fall 
within  the  program  adopted  by  the  Cabinets,  must  be  abso- 
lutely excluded  from  the  deliberations  of  the  Conference. 

In  requesting  you.  Sir,  to  be  good  enough  to  apply  to  your 
Government  for  instructions  on  the  subject  of  my  present  com- 
munication, I beg  you  at  the  same  time  to  inform  it  that,  in  the 
interest  of  the  great  cause  which  my  August  Master  has  so 
much  at  heart.  His  Imperial  Majesty  considers  it  advisable  that 
the  Conference  should  not  sit  in  the  capital  of  one  of  the  Great 
Powers,  where  so  many  political  interests  are  centered  which 
might,  perhaps,  impede  the  progress  of  a work  in  which  all  the 
countries  of  the  universe  are  equally  interested.* 


The  disinterestedness  of  the  Czar  is  evident  not  merely  in  the 
call  itself,  for,  as  a great  military  power,  Russia  could  not 
properly  be  accused  of  seeking  by  disarmament  an  advantage 


‘ Holls’  Peace  Conference,  pp.  24-27. 


GENERAL  SURVEY  OF  THE  FIRST  PEACE  CONFERENCE  47 


for  itself,  and,  in  the  next  place,  the  disinterestedness  was  like- 
wise evident  in  renouncing  all  thought  of  St.  Petersburg  as 
a place  of  meeting  for  the  proposed  conference.  The  choice 
of  The  Hague  was  communicated  to  the  invited  governments 
on  February  9/January  28,  1899,  and  on  April  7,  1899,  the 
Dutch  government  extended  an  invitation  to  the  Powers 
indicated  by  Russia  for  participation  in  the  conference : 

My  Government  trusts  that  the  Government  will 

associate  itself  with  the  great  humanitarian  work  to  be  en- 
tered upon  under  the  auspices  of  His  Majesty,  the  Emperor  of 
all  the  Russias,  and  that  it  will  be  disposed  to  accept  this 
invitation,  and  to  take  the  necessary  steps  for  the  presence  of 
its  Representatives  at  The  Hague  on  the  18th  May,  next,  for 
the  opening  of  the  Conference,  at  which  each  Power,  what- 
ever may  be  the  number  of  its  Delegates,  will  have  only  one 
vote. * 

It  wUl  be  noted  that  the  Powers  selected  in  first  instance 
were  those  having  representatives  at  St.  Petersburg,  to  which 
were  added  Luxemburg,  Montenegro  and  Siam.  It  may  be 
admitted  that  the  principle  of  selection  in  the  first  place  was 
natural.  Its  extension  to  Luxemburg,  Montenegro  and  Siam 
to  the  exclusion  of  the  Latin- American  nations  was  arbitrary. 
As  Russia  has  vouchsafed  no  official  explanation  of  the  princi- 
ple of  invitation  and  exclusion  any  attempted  explanation  will 
be  individual  and  therefore  conjectural.  It  is  safe  to  assert, 
however,  that  exclusion  did  not  necessarily  involve  disrespect.^ 

3.  Opening  of  the  Conference 

The  opening  of  the  Conference  was  fixed  for  the  18th  day 
of  May,  a graceful  tribute  to  the  Czar,  whose  birthday  it  is. 
The  opening  ceremony  was  set  for  2 o’clock  of  the  after- 


* Holls’  Peace  Conference,  p.  34. 

’ For  a list  of  Powers  participating  in  the  First  Conference,  see  Final  Act 
of  First  Conference,  Vol.  II,  pp.  63-77. 

It  may  be  of  interest  to  note  that  Bulgaria  was  represented;  that  its 
delegation  sat  behind  Turkey.  In  the  Second  Conference  Bulgaria  was 
treated  as  independent  in  every  respect. 


48 


THE  HAGUE  PEACE  CONFERENCES 


noon  in  the  Oranje  Zaal  of  the  House  in  the  Woods,  the  sum- 
mer palace  of  the  Dutch  royal  family,  situated  about  a mile 
from  the  city  in  the  beautiful  park  known  as  the  Bosch4  The 
Conference  was  called  to  order  by  M.  de  Beaufort,  Dutch 
Minister  of  Foreign  Affairs,  who  said  in  part: 

In  the  name  of  Her  Majesty,  my  August  Sovereign,  I have 
the  honor  to  bid  you  welcome,  and  to  express  in  this  place  my 
sentiments  of  profound  respect  and  lively  gratitude  toward 
His  Majesty,  the  Emperor  of  all  the  Russias,  who,  in  designating 
The  Hague  as  the  meeting-place  of  the  Peace  Conference,  has 
conferred  a great  honor  upon  our  country.  His  Majesty,  the 
Emperor  of  all  the  Russias,  in  taking  the  noble  initiative  which 
has  been  acclaimed  throughout  the  entire  civilized  world,  wish- 
ing to  realize  the  desire  expressed  by  one  of  his  most  illustrious 
predecessors — the  Emperor  Alexander  the  First — that  of  seeing 
all  the  sovereigns  and  all  the  nations  of  Europe  united  for  the 
purpose  of  living  as  brethren,  aiding  each  other  according  to 
their  reciprocal  needs, — inspired  by  these  noble  traditions  of 
his  august  grandfather.  His  Majesty  has  proposed  to  all  the 
Governments,  of  which  the  representatives  are  found  here,  the 
meeting  of  a Conference  which  should  have  the  object  of  seeking 
the  means  of  putting  a limit  to  incessant  armaments,  and  to 
prevent  the  calamities  which  menace  the  entire  world.  The 
day  of  the  meeting  of  this  Conference  will,  beyond  doubt,  be 
one  of  the  days  which  will  mark  the  history  of  the  century  which 
is  about  to  close.  It  coincides  with  the  festival  which  all  the 
subjects  of  His  Majesty  celebrate  as  a national  holiday,  and  in 
associating  myself,  from  the  bottom  of  my  heart,  with  all  the 
wishes  for  the  well-being  of  this  magnanimous  Sovereign,  I 
shall  permit  myself  to  become  the  interpreter  of  the  wishes  of 
the  civilized  world,  in  expressing  the  hope  that  His  Majesty, 
seeing  the  results  of  his  generous  designs  by  the  efforts  of  this 
Conference,  may  hereafter  be  able  to  consider  this  day  as  one  of 
the  happiest  in  his  reign.  Her  Majesty,  my  August  Sovereign, 
animated  by  the  same  sentiments  which  have  inspired  the 
Emperor  of  all  the  Russias,  has  chosen  to  put  at  the  disposal  of 
this  Conference  the  most  beautiful  historical  monument  which 
she  possesses.  The  room  where  you  find  yourselves  today, 
decorated  by  the  greatest  artists  of  the  seventeenth  century,  was 
erected  by  the  widow  of  Prince  Frederick  Henry  to  the  memory 
of  her  noble  husband.  Among  the  greatest  of  the  allegorical 
figures  which  you  will  admire  here,  there  is  one  appertaining  to 

^For  a description  of  the  House  in  the  Woods,  see  Dr.  Andrew  D. 
White’s  Autobiography,  Vol.  II,  pp.  256-257. 


GENERAL  SURVEY  OF  THE  FIRST  PEACE  CONFERENCE  49 

the  peace  of  Westphalia,  which  merits  your  attention  most 
especially.  It  is  the  one  where  you  see  Peace  entering  this 
room  for  the  purpose  of  closing  the  Temple  of  Janus.  I hope, 
gentlemen,  that  this  beautiful  allegory  will  be  a good  omen  for 
your  labors,  and  that,  after  they  have  been  terminated,  you  will 
be  able  to  say  that  Peace,  which  here  is  shown  to  enter  this  room, 
has  gone  out  for  the  purpose  of  scattering  its  blessings  over  all 
humanity.  ‘ 

His  Excellency  then  closed  his  address  by  making  two  prop- 
ositions; that  a telegram  of  congratulation  be  sent  to  the 
Czar  and  that  the  presidency  of  the  Conference  be  conferred 
upon  M.  de  Staal,  ambassador  of  Russia  at  the  Court  of 
St.  James.  Both  motions  were  unanimously  agreed  to. 
M.  de  Staal  thereupon  assumed  the  presidency  and  addressed 
the  Conference  in  part  as  follows: 

In  the  quiet  surroundings  of  The  Hague — in  the  midst  of  a 
nation  which  constitutes  a most  significant  factor  of  universal 
civilization,  we  have  under  our  eyes  a striking  example  of  what 
may  be  done  for  the  welfare  of  peoples  by  valor,  patriotism  and 
sustained  energy.  It  is  upon  the  historic  ground  of  The  Nether- 
lands that  the  greatest  problems  of  the  political  life  of  States 
have  been  discussed ; it  is  here,  as  one  may  say,  that  the  cradle 
of  the  science  of  International  Law  has  stood;  for  centuries  the 
important  negotiations  between  European  Powers  have  taken 
place  here,  and  it  is  here  that  the  remarkable  treaty  was  signed 
which  imposed  a truce  during  the  bloody  contest  between  States. 
We  find  ourselves  surrounded  by  great  historic  traditions.* 

In  terminating  his  discourse,  he  proposed  a telegram  to  Her 
Majesty  the  Queen,  the  hostess  of  the  Conference,  and  moved 
the  election  of  an  honorary  president  (M.  de  Beaufort)  and 
vice-president  (Jonkheer  van  Karnebeek,  first  delegate  of 
The  Netherlands).  Both  propositions  were  unanimously 
approved.  The  Conference  thereupon  elected  the  secretaries 
and  adjourned. 

The  first  meeting  of  the  Conference  was  in  the  nature  of 
things  purely  formal ; the  second  session,  held  May  20,  outlined 


' Conference  Internationale  de  la  Paix,  1899,  part  I,  p.  10. 
’Ibid.,  p.  11. 


50 


THE  HAGUE  PEACE  CONFERENCES 


the  work  before  the  delegates  and  the  means  by  which  it  was 
hoped  positive  results  would  best  be  accomplished. 

In  the  course  of  his  remarks  on  this  occasion,  the  president, 
M.  de  Staal,  stated  that  the  principal  object  of  the  delibera- 
tions of  the  Conference  was 

“to  seek  the  most  efficacious  means  to  assure  to  all  peoples  the 
blessings  of  a real  and  durable  peace,  that  the  Peace  Conference 
must  not  fail  in  the  mission  which  devolves  upon  it;  it  must  offer 
a result  of  its  deliberations  which  shall  be  tangible,  and  which 
all  humanity  awaits  with  confidence,”  and  that  “the  eagerness 
which  the  Powers  have  shown  in  accepting  the  proposition  con- 
tained in  the  Russian  Circular  is  the  most  eloquent  testimony  of 
the  unanimity  which  peaceful  ideas  have  attained.” 

He  said  that  the  very  membership  of  the  assembly,  consisting 
of  eminent  diplomats,  renowned  savants  in'  the  domain  of 
international  law,  and  the  general  and  superior  officers  of  the 
armies  and  navies 

“is  a certain  guarantee  of  the  spirit  in  which  the  Conference 
approached  the  labor  which  had  been  confided  to  it. 

“Diplomacy,”  he  continued  “has  for  it  objects  the  prevention 
and  appeasement  of  conflicts  between  States;  the  softening  of 
rivalries,  the  conciliation  of  interests,  the  clearing  up  of  mis- 
understandings, and  the  substitution  of  harmony  for  discord. 
I may  be  permitted  to  say  that  in  accordance  with  the  general 
law,  diplomacy  is  no  longer  only  an  art  in  which  personal  skill 
enjoys  exclusive  prominence.  It  is  tending  to  become  a science, 
which  should  have  its  own  fixed  rules  for  the  solution  of  inter- 
national conflicts.  This  is  today  the  ideal  object  which  ought 
to  be  before  our  eyes.” 

The  Conference,  he  said,  would  also  undertake  to  general- 
ize and  codify  the  practice  of  arbitration,  of  mediation  and 
of  good  offices,  the  most  useful  object  being  to  prevent  con- 
flicts by  pacific  means.  He  stated  that  the  Conference 
should  not  endeavor  to  follow  abstractions  but  to  remain  in 
the  domain  of  reality.  In  the  actual  state  of  affairs,  he  con- 
tinued. 

We  perceive  between  nations  an  amount  of  material  and 
moral  interests  which  is  constantly  increasing.  The  ties  which 
unite  all  parts  of  the  human  family  are  ever  becoming  closer. 
A nation  could  not  remain  isolated  if  it  wished.  It  finds  itself 


GENERAL  SURVEY  OF  THE  FIRST  PEACE  CONFERENCE  51 

surrounded,  as  it  were,  by  a living  organism  fruitful  in  blessings 
for  all,  and  it  is,  and  should  be,  a part  of  this  same  organism. 
. . . . If,  therefore,  the  nations  are  united  by  ties  so  multi- 

farious, is  there  no  room  for  seeking  the  consequences  arising 
from  this  fact?  When  a dispute  arises  between  two  or  more 
nations,  others,  without  being  concerned  directly,  are  profoundly 
affected.  The  consequences  of  an  international  conflict  occur- 
ring in  any  portion  of  the  globe  are  felt  on  all  sides.  It  is  for 
this  reason  that  outsiders  can  not  remain  indifferent  to  the 
conflict — they  are  bound  to  endeavor  to  appease  it  by  concilia- 
tory action. 

M.  de  Staal  pointed  out  the  great  need  for  peace,  that  arbi- 
tration and  mediation  were  among  the  means  employed  for 
insuring  it,  that  diplomacy  had  not  fixed  the  method  of  their 
employment  nor  defined  the  cases  in  which  they  are  allowable, 
and  that  it  was  to  this  high  labor  that  the  Conference  must 
concentrate  its  efforts ; that  when  an  armed  conflict  between 
nations  cannot  be  absolutely  prevented,  it  becomes  a great 
work  for  humanity  to  mitigate  the  horrors  of  war,  and  that, 
while  the  Governments  of  civilized  States  had  all  entered  into 
international  agreements,  it  was  for  the  Conference  to  estab- 
lish mew  principles.  He  stated  that  the  Conference  would 
also  consider  the  question  of  the  limitation  of  armaments. 

As  to  the  method  of  procedure  of  the  Conference,  the  presi- 
dent submitted  the  following  proposal: 

One  of  our  preliminary  duties  in  order  to  insure  the  progress 
of  our  work  is  to  divide  our  labors,  and  I therefore  beg  to  sub- 
mit for  your  approval  the  following  proposal.  Three  Commit- 
tees shall  be  appointed.  The  First  Committee  shall  have  charge 
of  the  Articles  1,  2,  3,  and  4 of  the  Circular  of  December  30, 
1898.  The  Second  Committee  of  Articles  5,  6,  and  7.  The 
Third  Committee  shall  have  charge  of  Article  8 of  the  said  Circu- 
lar, and  each  Committee  shall  have  power  to  subdivide  itself 
into  sub-committees. 

It  is  understood  that  outside  of  the  aforementioned  points 
the  Conference  does  not  consider  itself  competent  to  consider 
any  other  question.  In  case  of  doubt  the  Conference  shall 
decide  whether  any  proposition  originating  in  the  Committee 
is  germane  or  not  to  the  points  outlined.  Every  State  may  be 
represented  upon  every  Committee.  The  First  Delegates  shall 
designate  the  members  of  the  respective  delegations  who  shall 


52 


THE  HAGUE  PEACE  CONFERENCES 


be  members  of  each  of  the  Committees.  Members  may  be 
appointed  upon  two  or  more  Committees.  In  the  same  manner 
as  in  the  full  Conference,  each  State  shall  have  but  one  vote  in 
each  Committee.  The  Delegates,  representing  the  Govern- 
ments, may  take  part  in  all  the  meetings  of  the  Committees. 
Technical  and  scientific  Delegates  may  take  part  in  the  full 
meetings  of  the  Conference.  The  Committees  shall  appoint 
their  own  officers  and  regulate  the  order  of  their  labors.* 

Leaving  out  of  consideration  the  dispositions  of  a general 
nature,  it  will  be  seen  that  the  program  of  the  Conference 
introduced  certain  subjects,  which,  from  their  general  similar- 
ity,might  properly  form  a group  and  be  assigned  to  a committee 
or  commission  of  the  Conference  charged  with  their  discussion 
and  examination.  The  various  subjects  dealing  with  arma- 
ments and  disarmament,  land  and  naval  warfare,  might  form 
a group  by  themselves,  comprised  of  the  first  seven  articles. 
Article  8,  dealing  with  the  peaceful  settlement  of  international 
difficulties,  would  appropriately  be  separated  from  rules  and 
regulations  concerning  warfare,  and  form  material  for  a separate 
commission.  But  a closer  analysis  of  Articles  1 to  7 shows 
that  they  are  susceptible  of  a further  sub-division,  for  several 
of  them  deal  with  land  warfare,  whereas  others  relate 
more  particularly  to  naval  warfare.  It  would  have  been  pos- 
sible, and  perhaps  more  logical,  to  have  adopted  the  inher- 
ent nature  of  the  various  propositions  as  the  test,  and  to  have 
referred  military  matters  to  one  committee  and  naval  matters 
to  another.  The  principle  of  sub-division  was  recognized 
but  not  logically  or  rigorously  applied.  For  example.  Arti- 
cles 1,  2,  3 and  4,  of  the  Circular  of  December  30,  were  referred 
to  the  First  Commission.  Articles  5,  6,  7,  two  of  which  deal 
with  naval  matters,  and  the  third  (Article  7)  with  the  laws  and 
customs  of  land  warfare,  were  referred  to  the  Second  Commis- 
sion; Article  8,  concerning  the  peaceful  settlement  of  inter- 
national difficulties,  was  referred  to  the  consideration  of  the 
Third  Commission,  which,  both  from  the  importance  of  the 
subject  and  from  the  results  achieved,  not  only  justified  the 


* Conference  Internationale  de  la  Paix,  1899,  part  I,  pp.  12-14. 


GENEKAL  SURVEY  OP  THE  FIRST  PEACE  CONFERENCE  53 


name  universally  given  to  the  Conference,  but  would  in  itself 
have  justified  the  assembling  of  an  international  conference. 

The  Conference  itself  was  divided  into  two  great  divisions, 
the  conference  in  plenary  session  on  the  one  hand,  and  the 
three  commissions  on  the  other,  to  which  the  various  articles 
of  the  program  were  referred  for  such  disposition  as  they 
might  find  possible  to  make.  Each  commission  was  given  the 
right  to  perfect  its  organization,  and  to  conduct  its  proceed- 
ings as  it  deemed  expedient.  The  result  of  its  deliberations 
was  to  be  reported  to  the  Conference  for  adoption  in  plenary 
session. 

The  official  language  of  the  Conference  was  French.  The 
various  reports  and  texts  presented  for  adoption  were  written 
and  presented  in  French,  and  French  was  the  language  ordinarily 
used  as  the  means  of  communication.  Other  languages  were 
permitted,  and  were  used  on  occasion  by  various  delegates,  but 
the  addresses  were  translated  into  French  immediately  upon 
delivery,  and  in  printed  and  permanent  form  they  appear  in 
French  in  the  records  of  the  Conference.  Proces-verbaux,  or 
formal  minutes  of  the  proceedings,  were  drawn  up  by  the  secre- 
taries of  the  Conference  and  distributed  both  for  the  information 
of  the  members  and  for  the  purposes  of  correction,  so  that  the 
completed  record  of  the  Conference  appears  in  the  proces- 
verbaux  of  the  plenary  session  of  the  Conference,  in  the  proces- 
verbaux  of  each  of  the  commissions,  the  reports  of  the  various 
reporters  of  the  commissions  and  sub-commissions,  and  in 
the  Final  Texts  ultimately  adopted. 

The  question  of  publicity  was  one  which  greatly  perplexed 
the  Conference ; for  two  legitimate  interests  found  themselves 
in  almost  irreconcilable  opposition:  the  interest  of  the  public 
on  the  one  hand  which  wished  to  know  exactly  what  took 
place;  and  the  interest  of  the  Conference  on  the  other,  which 
desired,  as  far  as  possible,  to  conduct  its  labors  and  reach 
conclusions  without  subjecting  itself  in  advance  to  criticism, 
however  honest  and  sincere,  based  upon  judgments  formed  at 
a distance  and  upon  an  imperfect  understanding  of  the  aims 
and  purposes  of  the  Conference.  A compromise  was  therefore 


54 


THE  HAGUE  PEACE  CONFERENCES 


attempted.  The  secrecy  of  the  proceedings  of  the  sessions 
was  adopted  as  the  rule.‘  To  satisfy  the  legitimate  curiosity 
of  the  public  in  as  large  a measure  as  possible,  the  president 
was  authorized  in  his  discretion  to  make  communications  to 
the  press.  As  the  desire  of  the  press  is  for  full  and  accurate 
information,  it  can  not  be  said  that  the  compromise  was  wholly 
satisfactory. 

4.  The  First  Commission — The  Limitation  of 
Armaments 

At  the  meeting  of  the  First  Commission,  held  on  June  23, 
1899,  M.  Beernaert,  of  Belgium,  its  president,  stated  truly 
and  accurately  that  the  question  of  setting  a limit  to  progres- 
sive increase  of  armaments  is  difficult,  and  that  it  would  be 
impossible  to  exaggerate  its  importance;  for  the  question  of 
armed  peace  is  not  only  bound  closely  to  that  of  wealth  and 
of  the  highest  form  of  progress,  but  also  to  the  question  of 
social  peace.  He  asked,  for  example,  if  the  agreement  should 
provide  for  the  number  of  effective  forces,  or  for  the  amount 
of  the  budget  of  military  expenses,  or  if  for  both  of  these,  how 
should  the  numbers  be  fixed  and  verified?  Should  the  armies 
of  today  be  taken  as  the  basis  for  the  designation?  Are  naval 
forces  to  be  treated  the  same  as  armies?  What  shall  be  done 
about  the  defense  of  colonies?^  M.  de  Staal  stated  the  essen- 
tial point  before  the  commission  as  the  question  of  the  limita- 
tion of  budgets  and  of  actual  armaments. 

“It  seems  to  me  indispensably  necessary,”  he  said,  “to  insist 
that  this  important  question  should  be  made  the  subject  of  a 

* The  American  Delegation  was  strongly  in  favor  of  the  publicity  of  the 
proceedings.  At  the  third  session  of  the  Third  Commission  (June  5,  1899) 
M.  Beldiman  of  Roumania  stated  that  “a  document  recently  distributed 
marked  ‘secret’  was  published  four  days  previously  in  The  Times  and 
reproduced  the  next  day  in  the  Cologne  Gazette.  It  is  the  American 
project  concerning  the  institution  of  a permanent  tribunal  of  arbitration.” 
(Conf4rence  Internationale  de  la  Paix,  1899,  part  IV,  Third  Commission 
p.  5.)  No  doubt  many  such  instances  occurred. 

’ Conf4rence  Internationale  de  la  Paix,  1899,  part  II,  First  Commission, 

pp.  20-21. 


GENERAL  SURVEY  OF  THE  FIRST  PEACE  CONFERENCE  55 


most  profound  study,  constituting,  as  it  does,  the  first  purpose 
for  which  we  are  here  united,  that  of  alleviating,  so  far  as  pos- 
sible, the  dreadful  burden  which  weighs  upon  the  peoples,  and 
which  hinders  their  material  and  even  moral  development. 

. . . . Armed  peace  today  causes  more  considerable  expense 
than  the  most  burdensome  war  of  former  times.  ....  Is 
it  necessary  for  me  to  declare,”  he  continued,  “that  we  are  not 
speaking  of  Utopias  or  chimerical  measures?  We  are  not  con- 
sidering disarmament.  What  we  are  hoping  for,  is  to  attain  a 
limitation — -a  halt  in  the  ascending  course  of  armaments  and 
expenses.  . . . .For  the  moment  we  aspire  to  the  attain- 

ment of  stability  for  fixed  limitation  of  the  number  of  effectives 
and  of  military  budgets.”^ 

Colonel  Gilinsky,  technical  delegate  of  Russia,  thereupon 
submitted  the  texts  of  the  Russian  propositions : 

1.  An  international  agreement  for  the  term  of  five  years, 
stipulating  for  the  nonaugmentation  of  the  present  number  of 
troops  kept  in  time  of  peace. 

2.  The  determination,  in  case  of  such  an  agreement,  if  it 
is  possible,  of  the  number  of  troops  to  be  kept  in  time  of  peace 
by  ail  of  the  Powers,  not  including  Colonial  troops. 

3.  The  maintenance,  for  the  term  of  five  years,  of  the 
amount  of  the  military  budget  in  force  at  the  present  time.* 

As  regards  navies,  Captain  Sch4ine,  Russian  naval  dele- 
gate, presented  the  following: 

The  acceptance  in  principle  of  fixing  for  a term  of  three 
years  the  amount  of  the  naval  budget,  and  an  agreement  not 
to  increase  the  total  amount  for  this  triennial  period,  and  the 
obligation  to  publish  during  this  period,  in  advance: 

1.  The  total  tonnage  of  men-of-war  w'hich  it  is  proposed 
to  construct,  without  giving  in  detail  the  types  of  ships. 

2.  The  number  of  officers  and  crews  in  the  navy. 

3.  The  expenses  of  coast  fortifications,  including  fortresses, 
docks,  arsenals,  etc.® 

For  a detailed  consideration  of  the  military  proposals,  a 
sub-commission  was  appointed,  and  in  like  manner  the  naval 
proposals  were  submitted  to  another  sub-commission.  The 
military  committee  charged  with  the  investigation  of  the 

' Conference  Internationale  de  la  Paix,  1899,  part  II,  First  Commission, 
pp.  21-22.  See  also  Holls’  Peace  Conference,  p.  70-72. 

’Ibid.,  pp.  23-25.  See  also  Holls’  Peace  Conference,  p.  72. 

’Ibid.,  p.  26.  See  also  Holls’  Peace  Conference,  p.  72. 


56 


THE  HAGUE  PEACE  CONFERENCES 


first  proposal  reported  through  M.  Beernaert,  its  president, 
the  following; 

The  members  of  the  committee,  to  whom  was  referred  the 
proposition  of  Colonel  Gilinsky,  regarding  the  first  point  in  the 
Circular  of  Count  Mouravieff,  after  two  meetings,  report,  that 
with  the  exception  of  Colonel  Gilinsky  they  are  unanimously  of 
the  opinion,  first,  that  it  would  be  very  difficult  to  fix,  even  for 
a period  of  five  years,  the  number  of  effectives,  without  regulat- 
ing at  the  same  time  other  elements  of  national  defense;  second, 
that  it  would  be  no  less  difficult  to  regulate  by  international 
agreement  the  elements  of  this  defense,  organized  in  every 
country  upon  a different  principle.  In  consequence,  the  com- 
mittee regrets  not  being  able  to  approve  the  proposition  made 
in  the  name  of  the  Russian  Government.  A majority  of  its 
members  believe  that  a more  profound  study  of  the  question 
by  the  Governments  themselves  would  be  desirable.  ‘ 

The  report  of  the  sub-commission  on  naval  affairs  was 
of  like  tenor.  In  a word,  the  sub-commissions  considered 
the  proposals  in  their  present  form,  and  indeed  in  any  form, 
unacceptable,  and  had  it  not  been  for  the  great  tact  and  large 
heart  of  M.  Bourgeois,  first  delegate  from  France,  it  is  possible 
that  an  absolute  failure  would  have  been  reported  to  the  Con- 
ference. In  a speech  of  great  power  and  beauty  he  declared 
that 

if  the  great  resources,  which  are  now  devoted  to  military  organ- 
ization, would,  at  least  in  part,  be  put  to  the  service  of  peaceful 
and  productive  activity,  the  grand  total  of  the  prosperity  of 
each  country  would  not  cease  to  increase  at  an  even  more  rapid 

rate The  object  of  civilization  seems  to  us  to  be  to  abolish 

more  and  more  the  struggle  for  life  between  men,  and  to  put  in 
its  stead  an  accord  between  them  for  the  struggle  against  the 
unrelenting  forces  of  matter.  This  is  the  same  thought  which, 
upon  the  initiative  of  the  Emperor  of  Russia,  it  is  proposed  that 
we  should  promote  by  international  agreement.  If  sad  neces- 
sity obliges  us  to  renounce  for  the  moment  an  immediate  and  posi- 
tive engagement  to  carry  out  this  idea,  we  should  at  least  at- 
tempt to  show  public  opinion  that  we  have  sincerely  examined 
the  problem  presented  to  us.  We  shall  not  have  labored  in 
vain  if  in  a formula  of  general  terms  we  at  least  indicate  the 

* Conference  Internationale  de  la  Paix,  1899,  part  II,  First  Commission, 
pp.  31-32;  Holls’  Peace  Conference  at  The  Hague,  p.  83. 


GENERAL  SURVEY  OF  THE  FIRST  PEACE  CONFERENCE  57 


goal  to  be  approached,  as  we  all  hope  and  wish,  by  all  civilized 
nations^ 

Mr.  Bourgeois  thereupon  proposed  the  following  resolution, 
applicable  alike  to  military  as  well  as  naval  charges,  which  was 
unanimously  adopted  by  the  commission  and  approved  by  the 
Conference : 

The  Committee  considers  that  a limitation  of  the  military 
charges  which  now  weigh  upon  the  world  is  greatly  to  be  desired 
in  the  interests  of  the  material  and  moral  welfare  of  humanity.^ 

The  resolution  expressed  a sentiment  highly  honorable  and 
creditable  to  the  Conference,  but  it  neither  bound  the  nations 
to  do  anything,  nor  did  it  suggest  any  specific  or  future  action. 
In  addition,  however,  to  the  adoption  of  the  resolution,  the 
Conference  expressed  the  wish  that 

the  Governments,  taking  into  consideration  the  proposals 
made  at  the  Conference,  may  examine  the  possibility  of  an 
agreement  as  to  the  limitation  of  armed  forces  by  land  and  sea, 
and  of  war  budgets.® 

It  is  needless  to  say  that  the  American  delegates  sympa- 
thized profoundly  with  the  views  expressed  in  the  Russian 
Circular,  and  that  they  took  an  active  share  in  the  discussions 
of  the  commission,  but  as  members  of  the  delegation  they 
were  guided  by  their  instructions,  which  deprived  them  of 
initiative  and  controlled  their  vote.  For  example,  the  instruc- 
tion on  the  first  article,  the  one  under  discussion,  is  as  follows: 

The  first  article,  relating  to  the  nonaugmentation  and  future 
reduction  of  effective  land  and  sea  forces,  is,  at  present,  so 
inapplicable  to  the  United  States  that  it  is  deemed  advisable 
for  the  delegates  to  leave  the  initiative  upon  this  subject  to  the 
representatives  of  those  Powers  to  which  it  may  properly  belong. 
In  comparison  with  the  effective  forces,  both  military  and  naval, 
of  other  nations,  those  of  the  United  States  are  at  present  so 
far  below  the  normal  quota  that  the  question  of  limitation 
could  not  be  profitably  discussed.* 

' Conference  Internationale  de  la  Paix,  1899,  part  II,  First  Commission, 
pp.  33-34.  Holls’  Peace  Conference,  pp.  87-90. 

®Ibid.,  p.  34.  See  also  Holls’  Peace  Conference,  p.  90. 

® Final  Act  of  the  International  Peace  Conference,  Vol.  II,  p.  79. 

* Instructions  to  the  International  Peace  Conference,  Vol.  II,  p.  7. 


58 


THE  HAGUE  PEACE  CONFERENCES 


Therefore,  at  the  last  meeting  of  the  First  Commission,  held 
on  July  17,  Captain  Mahan,  on  behalf  of  the  American  dele- 
gation, expressed  sympathy  and  its  views  in  the  following 
measured  paragraphs: 

The  delegation  of  the  United  States  of  America  have  con- 
curred in  the  conclusions  upon  the  first  clause  of  the  Russian 
letter  of  December  30,  1898,  presented  to  the  Conference  by  the 
First  Commission,  namely:  that  the  proposals  of  the  Russian 
representatives,  for  fixing  the  amounts  of  effective  forces  and  of 
budgets,  military  and  naval,  for  periods  of  five  and  three  years, 
cannot  now  be  accepted,  and  that  a more  profound  study  upon 
the  part  of  each  State  concerned  is  to  be  desired.  But,  while 
thus  supporting  what  seemed  to  be  the  only  practicable  solu- 
tion of  a question  submitted  to  the  Conference  by  the  Russian 
letter,  the  delegation  wishes  to  place  upon  the  record  that  the 
United  States,  in  so  doing,  does  not  express  any  opinion  as  to  the 
course  to  be  taken  by  the  States  of  Europe. 

This  declaration  is  not  meant  to  indicate  mere  indifference  to 
a difficult  problem,  because  it  does  not  affect  the  United  States 
immediately,  but  expresses  a determination  to  refrain  from 
enunciating  opinions  upon  matters  into  which,  as  concerning 
Europe  alone,  the  United  States  has  no  claim  to  enter.  The 
resolution  offered  by  M.  Bourgeois,  and  adopted  by  the  First 
Commission,  received  also  the  hearty  concurrence  of  this  dele- 
gation, because  in  so  doing  it  expresses  the  cordial  interest 
and  sympathy  with  which  the  United  States,  while  carefully 
abstaining  from  anything  that  might  resemble  interference, 
regards  all  movements  that  are  thought  to  tend  to  the  welfare 
of  Europe.  The  military  and  naval  armaments  of  the  United 
States  are  at  present  so  small,  relatively,  to  the  extent  of  terri- 
tory and  to  the  number  of  the  population,  as  well  as  in  com- 
parison with  those  of  other  nations,  that  their  size  can  entail 
no  additional  burden  or  expense  upon  the  latter,  nor  can  even 
form  a subject  for  profitable  mutual  discussion.^ 

The  instructions  of  the  American  Government  on  the  second, 
third  and  fourth  articles  of  the  Russian  Circular,  while  they 
prescribed  a line  of  conduct  to  the  American  delegation,  so 
clearly  expressed  the  view  of  the  Conference,  that  the  single 
paragraph  in  which  they  are  contained  deserves  quotation: 

The  second,  third,  and  fourth  articles,  relating  to  the  non- 
employment of  firearms,  explosives,  and  other  destructive  agents, 

* Conference  Internationale  de  la  Paix  1899,  part  II,  pp.  39-40,  Plenary 
Sessions. 


GENERAL  SURVEY  OF  THE  FIRST  PEACE  CONFERENCE  59 


the  restricted  use  of  existing  instruments  of  destruction,  and 
the  prohibition  of  certain  contrivances  employed  in  naval  war- 
fare, seem  lacking  in  practicability,  and  the  discussion  of  these 
propositions  would  probably  prove  provocative  of  divergence 
rather  than  unanimity  of  view.  It  is  doubtful  if  wars  are  to  be 
diminished  by  rendering  them  less  destructive,  for  it  is  the  plain 
lesson  of  history  that  the  periods  of  peace  have  been  longer  pro- 
tracted as  the  cost  and  destructiveness  of  war  have  increased. 
The  expediency  of  restraining  the  inventive  genius  of  our  people 
in  the  direction  of  devising  means  of  defense  is  by  no  means 
clear,  and,  considering  the  temptations  to  which  men  and 
nations  may  be  exposed  in  a time  of  conflict,  it  is  doubtful  if  an 
international  agreement  to  this  end  would  prove  effective.  The 
dissent  of  a single  powerful  nation  might  render  it  altogether 
nugatory.  The  delegates  are,  therefore,  enjoined  not  to  give 
the  weight  of  their  influence  to  the  promotion  of  projects  the 
realization  of  which  is  so  uncertain.^ 

The  second,  third,  and  fourth  clauses  of  the  Russian  Circu- 
lar of  December  30  were  likewise  referred  to  the  First  Commis- 
sion, and  by  it  the  second  and  third  paragraphs  dealing 
with  military  matters  were  assigned  for  study  and  report  to 
the  sub-commission  for  the  consideration  of  military  affairs, 
and  the  paragraph  dealing  with  naval  matters  was  referred  to 
the  Second  Sub-Commission  to  which  was  entrusted  considera- 
tion of  naval  affairs.  In  regard  to  the  proposition  that  the 
small  arms  of  the  army  and  the  large  cannon  of  the  navy  be 
not  changed  for  a period  of  five  and  three  years,  respectively, 
the  small  States,  imperfectly  armed,  insisted  that  they  have 
the  privilege  either  of  discarding  the  old  models  and  adopting 
the  improved  arms  in  use  by  the  larger  nations,  or  that  they 
be  permitted  to  improve  their  old  equipment,  so  that  it  be 
in  fact  equal  to  the  more  modern  variety.  Again,  it  was  in- 
sisted that  permission  be  given  to  improve  the  arm,  provided  it 
did  not  change  the  type.  The  result  of  these  two  provisions 
was  unacceptable  in  theory,  because  the  adoption  of  new  arms 
of  the  permitted  standard  would  have  involved  an  outlay  of 
large  sums  of  money,  as  would  also  be  the  case  with  improve- 
ments of  the  type,  and  the  limitation  to  a certain  type  for  a 

‘ See  instructions  to  the  American  International  Peace  Conference,  Vol. 

n,  p.  7. 


\ 


60 


THE  HAGUE  PEACE  CONFERENCES 


period  of  years  would  fetter  the  inventive  agency  of  the  various 
nations,  and  thus  deprive  the  army  of  an  efficient  weapon  in 
the  case  of  war.  The  desired  economy  would  thus  fail;  the 
efficiency  of  the  army  would  suffer,  and  the  technical  difficul- 
ties involved  in  the  examination  of  the  approved  or  substi- 
tuted arm,  added  to  the  lack  of  an  effective  supervision  and 
control  of  any  agreement  if  reached,  interposed  insuperable 
obstacles  to  a convention. 

The  Conference  did,  however,  express 

the  wish  that  the  questions  with  regard  to  rifles  and  naval 
guns,  as  considered  by  it,  may  be  studied  by  the  Governments 
with  the  object  of  coming  to  an  agreement  respecting  the  em- 
ployment of  new  types  and  calibers.^ 

It  is  not  for  a layman  to  sit  in  judgment  upon  the  validity 
of  these  arguments.  They  were  decisive  and  convincing  to  the 
delegates,  and  show  the  difficulty  of  limiting  the  means  and 
instruments  of  warfare  until  an  acceptable  substitute  has  been 
devised  for  war.  The  proposed  interdiction  of  new  explo- 
sives was  disapproved  by  a vote  of  twelve  to  nine  in  the 
First  Sub-Commission,  and  the  proposal  forbidding  the  employ- 
ment of  more  powerful  powders  than  those  now  in  use  was 
unanimously  rejected.^  The  fourth  paragraph,  prohibiting 
the  use  in  naval  battles  of  submarine  or  diving  torpedo  boats, 
or  of  other  engines  of  destruction  of  the  same  nature,  as  well  as 
the  proposal  not  to  construct  in  the  future  ships  armed  with 
rams,  was  found  unacceptable  in  its  entirety. 

Other  portions  of  the  second  and  third  paragraphs  fared 
better,  and  resulted  in  a prohibition  for  a term  of  five  years 
of  the  launching  of  projectiles  and  explosives  from  balloons, 
or  by  other  new  methods  of  a similar  nature  f an  agreement  to 
refrain  from  the  use  of  bullets  which  expand  or  flatten  easily 
in  the  human  body,  such  as  bullets  with  a hard  envelope  which 
does  not  entirely  cover  the  core,  or  is  pierced  with  incisions;* 

’ Final  Act  of  the  International  Peace  Conference,  Vol.  II,  p.  79. 

' General  Den  Beer  Poortugael  Report,  La  Conf4rence  Internationale 
de  la  Paix,  1899,  part  II,  First  Commission,  p.  10. 

* See  Declaration  on  the  subject,  Vol.  II,  p.  153. 

‘See  Declaration,  Vol.  II,  p.  157. 


GENERAL  SURVEY  OF  THE  FIRST  PEACE  CONFERENCE  61 


and  from  the  naval  sub-commission  a declaration  to  abstain 
from  the  use  of  projectiles,  the  sole  object  of  which  is  the  dif- 
fusion of  asphyxiating  or  deleterious  gases.^ 

The  positive  result  of  the  labors  of  the  First  Commission 
was  far  from  encouraging,  and  while  the  discussion  was 
valuable,  it  can  not  be  said  that  the  conclusions  reached  would 
have  justified  in  themselves  the  calling  of  a conference  for 
their  consideration.  Whether  or  not  countries  will  agree  to 
limit  their  armies  and  navies,  and  will  adopt  uniform  arma- 
ment for  land  and  naval  forces,  is  a question  which  time  only 
can  answer.  It  may  safely  be  said,  however,  that  they  will 
not  do  so,  while  threatened  with  danger  from  without,  and  a 
plausible  reason  exists  both  for  their  maintenance  and  increase. 
The  nations  in  this  are  not  at  fault.  As  long  as  a resort  to 
force  for  the  settlement  of  international  difficulties  is  regarded 
as  a proper,  if  not  the  only  and  reasonable  expedient,  no  nation 
is  likely  to  expose  itself  to  strong,  aggressive,  and  not  over- 
scrupulous  neighbors,  by  depriving  itself  of  the  recognized 
means  of  protection  and  self-assertion.  The  means  of  warfare 
and  the  preparation  for  war  will  exist  until  a substitute  for 
war  be  proposed  which  is  not  only  reasonable  in  itself,  but 
which  is  so  reasonable  that  its  non-acceptance  would  be  unrea- 
sonable. It  may  be  that  the  inter-relation  and  interdepend- 
ence of  States  must  be  accepted  in  theory  and  practice,  and 
that  the  judicial  organization  of  the  world  be  realized  before 
armies  and  navies  will  cease  to  be  used  in  foreign  affairs,  and 
will  be  confined  to  protecting  commerce  and  policing  the  seas. 

Leaving  questions  of  this  nature,  and  returning  to  the  more 
limited  and  immediate  purpose,  the  procedure  of  the  Confer- 
ence is  seen  to  be  reference  to  a commission;  that  this  com- 
mission, for  purposes  of  dispatch  as  well  as  for  careful  consider- 
ation, formed  appropriate  sub-commissions  to  which  various 
questions  were  referred  for  study  and  report.  The  procedure 
was  simple  and  on  the  whole  adequate,  but  a further  state- 
ment should  be  made  in  order  to  show  how  the  commission 
dealt  with  proposed  amendments,  because  the  disposition  of 
I ‘ See  Declaration,  Vol.  II,  p.  155. 


62 


THE  HAGUE  PEACE  CONFERENCES 


amendments  explains  a matter  of  procedure  likely  to  affect 
not  merely  regularity  of  the  proceeding,  but  its  ultimate 
result.  In  parliamentary  assemblies,  and  a conference  as 
already  explained  is  not  a parliament,  it  is  customary  in  the  first 
instance  to  take  a vote  upon  an  amendment,  and  then  upon 
the  original  question.  By  such  a method,  simple  as  it  is  expedi- 
tious, the  view  of  the  body  is  expressed  both  upon  the  amend- 
ment and  upon  the  original  proposition.  The  procedure 
followed  in  the  Conference  was,  on  an  important  occasion,  the 
re  verse.  ‘ It  should  be  said  in  passing  that  the  Second  Con- 
ference reversed  the  procedure  of  the  first,  and  by  submitting 
the  amendment  first  to  vote  brought  the  proceedings  of  the 
Conference  into  harmony  with  parliamentary  law. 

5.  The  Second  Commission — ^The  Geneva  Convention. 

THE  Laws  and  Customs  of  War 

The  procedure  followed  in  the  Second  Commission  was  the 
same  as  that  followed  in  the  first,  namely,  the  extension  to 
maritime  warfare  of  the  principles  of  the  Geneva  Convention 
of  August  22,  1864,  was  referred  to  a First  Sub-Commission, 
and  this  in  turn  divided  itself,  and  appointed  a committee, 
composed  of  experts,  for  the  elaboration  of  a project.  The 

‘ For  example,  in  the  matter  of  explosive  bullets,  Captain  Crozier  on 
behalf  of  the  American  delegation,  proposed  an  amendment  which  would 
prevent  the  use  of  an  improper  bullet,  whatever  its  mechanical  device 
might  be,  whereas  the  original  proposition  of  the  commission  prohibited 
merely  a bullet  made  in  a particular  manner.  Another  bullet  made  in  a 
different  way  might  produce  equally  serious  consequences,  if  its  use  be 
permitted,  whereas  Captain  Crozier’s  formula  would  prevent  the  result, 
whatever  the  means  used.  The  commission  refused  to  take  a vote  first 
on  the  amendment,  and  when  the  original  proposition  was  adopted,  there 
was  no  longer  a necessity  for  considering  the  amendment.  In  this  case, 
it  is  highly  probable,  as  Mr.  Holls  points  out,  that  the  amendment  would 
have  been  lost  in  any  event,  but  had  it  been  first  put  to  a vote,  each 
delegation  represented  at  the  Conference  would  have  been  forced  by  this 
simple  machinery  to  express  its  views  on  both  propositions.  In  any  case, 
a well-recognized  parliamentary  expedient  would  have  been  adopted.  See 
the  elaborate  discussion  on  this  question  in  Conf4rence  Internationale  de 
la  Paix,  1899,  part  I,  Sixth  Plenary  Session,  pp.  55-61. 

Holls’  Peace  Conference,  pp.  113-114. 


GENERAL  SURVEY  OF  THE  FIRST  PEACE  CONFERENCE  63 


project  as  elaborated  by  the  sub-commission  and  approved  by 
the  Conference,  resulted  in  the  convention  for  the  adaptation 
to  maritime  warfare  of  the  principles  of  the  Geneva  Conven- 
tion of  August  22,  1864.  In  the  same  manner.  Article  7 of 
the  program  relating  to  the  revision  of  the  declaration  con- 
cerning the  laws  and  customs  of  war  elaborated  in  1874  by  the 
Conference  of  Brussels,  was  referred  to  the  Second  Commission, 
which,  in  turn,  assigned  the  topic  to  a sub-commission  which 
worked  out  the  project  which,  adopted  by  the  Conference, 
appears  as  the  convention  with  respect  to  the  laws  and  cus- 
toms of  war. 

The  two  conventions,  however,  were  not  the  only  results  of 
the  deliberations  of  the  Second  Commission,  for,  after  much 
thought  and  at  times  prolonged  and  heated  discussion,  the 
commission  reported  four  recommendations  which,  approved 
by  the  Conference,  find  an  appropriate  place  in  the  Final  Act. 
Of  each  of  these  in  turn. 

In  opening  the  labors  of  the  Second  Commission,  its  dis- 
tinguished president  M.  de  Martens  indicated  that  the  Geneva 
Convention  of  1864  would  be  the  subject  of  consideration  and 
study.  M.  Renault  called  attention  to  the  fact  that  it  was 
not  included  in  the  Russian  program.  At  the  next  session 
of  the  commission,  M.  de  Martens  admitted  the  correctness 
of  M.  Renault’s  contention,  but  stated,  and  it  would  seem 
very  properly,  that  the  discussion  of  the  additional  articles  of 
1868  would  necessarily  involve  the  Red  Cross  Convention  of 
1864.  As,  however,  the  program  did  not  include  its  revision, 
the  commission  restricted  itself  to  the  formulation  of  a recom- 
mendation for  its  revision. 

After  much  discussion  in  the  Second  Sub-Commission,  in  the 
full  commission,  and  in  the  fifth  session  of  the  Conference,  the 
following  voeu  was  finally  adopted: 

The  Conference,  taking  into  consideration  the  preliminary 
steps  taken  by  the  Swiss  Federal  Government  for  the  revision 
of  the  Geneva  Convention,  expresses  the  wish  that  steps  may 
be  shortly  taken  for  the  assembly  of  a Special  Conference  hav- 
ing for  its  object  the  revision  of  that  convention,* 

’ Vol.  II,  p.  79. 


64 


THE  HAGUE  PEACE  CONFERENCES 


As  Switzerland  had  summoned  the  Conference  that  drafted 
the  original  Red  Cross  Convention  of  1864,  and  as  Switzerland 
was  thus  closely  and  intimately  associated  with  it  both  in  its 
origin  and  development,  the  Conference  voted  that  the  States 
represented  at  The  Hague  would  be  happy  to  see  Switzerland 
shortly  take  the  initiative  for  the  revision  of  the  Convention 
of  1864.  This  was  a recognition  of  the  initiative  of  the  Swiss 
Government;  it  was  not  a mandate  in  express  terms  to  it 
to  call  a conference  for  the  revision  of  the  Geneva  Convention 
of  1864.  As  will  be  seen  in  a subsequent  lecture,  the  Swiss 
Government  ultimately,  with  diplomatic  slowness  and  pro- 
priety, did  issue  the  call,  and  the  Red  Cross  Convention  was 
admirably  revised  in  the  summer  of  1906.^ 

The  Convention  relative  to  the  laws  and  customs  of  war 
deals  primarily  with  the  rights  and  duties  of  belligerents 
between  themselves,  and  the  relations  which  non-combatants 
and  the  inhabitants  of  occupied  territory  bear  to  belligerents. 
M.  Eyschen,  of  Luxemburg,  called  attention  to  the  fact  in 
the  fifth  session  of  the  Second  Sub-Commission  that  the  rights 
and  duties  of  neutrals  are  of  such  fundamental  importance 
that  the  work  of  the  Conference  would  necessarily  be  imper- 
fect unless  the  status  of  neutrality  were  studied  and  defined; 
that  certain  States,  such  as  Switzerland,  Belgium,  and  Luxem- 
burg, had  a peculiar  interest  in  the  codification  of  the  rights 
and  duties  of  neutrals,  both  from  their  international  and 
geographical  position.  The  Sub-commission  recognized  the 
importance  of  the  subject,  but  as  the  commission  was  limited 
to  the  revision  of  the  Brussels  declaration,  a convention  on 
neutrality  was  beyond  its  scope.  Added  to  this,  the  diffi- 
culty, delicacy,  and  intricacy  of  the  subject  would  suggest 
that  the  codification  of  neutrality  be  referred  to  future  regu- 
lation. Upon  the  suggestion  of  M.  de  Martens,  in  the  Second 
Sub-Commission,  sixth  session,  the  following  voeu  was  adopted 
relegating  the  entire  subject  to  a future  conference: 

The  Conference  expresses  the  wish  that  the  questions  of  the 

* For  a full  account  of  the  revision,  see  the  Actes  de  la  Conference  de 
Geneve,  1906. 


GENERAL  SURVEY  OP  THE  FIRST  PEACE  CONFERENCE  65 


rights  and  duties  of  neutrals  may  be  inserted  in  the  program  of 
a conference  in  the  near  future.* 

The  American  delegation  had  been  instructed  to  bring  to 
discussion  the  immunity  from  capture  of  unoffending  private 
property  of  the  enemy  upon  the  high  seas.  The  question  did 
not  figure  in  the  Russian  program,  and  M.  de  Martens,  presi- 
dent of  the  Second  Commission,  ruled  it  out  of  order,  and  in  so 
doing  was  sustained  by  the  commission.  As  a result  of  dis- 
cussion, the  commission  expressed  a desire  that  the  immunity 
of  private  property  should  appear  in  the  program  of  a future 
conference,  and  on  July  5,  1899,  the  recommendation  that  it 
should  so  figure  was  adopted  in  the  plenary  session  of  the  Con- 
ference.* Mr.  White,  on  behalf  of  the  American  delegation, 
made  a careful  and  elaborate  argument  in  support  of  the 
immunity  of  private  property,  and  the  address  in  extenso 
was,  upon  motion,  spread  upon  the  minutes  of  the  session. 
Although  the  Conference  took  no  action  on  the  subject  other 
than  to  recommend  it  to  a future  conference,  right  of  way  was 
thus  secured  for  its  future  consideration.® 

In  the  same  way  it  was  held  that  the  subject  of  the  naval 
bombardment  of  ports  and  towns  was  beyond  the  scope  of  a 
program  limited  to  a consideration  of  the  laws  and  customs 
of  land  warfare.  Upon  the  suggestion  of  M.  de  Martens,  the 
Conference  expressed 

the  wish  that  the  proposal  to  settle  the  question  of  the  bom- 
bardment of  ports,  towns,  and  villages  by  a naval  force  may  be 
referred  to  a subsequent  conference  for  consideration.* 

Important  as  were  these  two  conventions  and  recommenda- 
tions prepared  by  the  Second  Commission,  they  would  not  in 
themselves,  anymore  than  the  more  meager  results  of  the  First 

' Final  Act  of  the  International  Peace  Conference,  Vol.  II,  p.  79. 

*Ibid. 

’ Conference  Internationale  de  la  Paix,  1899,  part  I,  Fifth  Plenary  Ses- 
sion, pp.  31-33.  See  also  Dr.  White’s  Autobiography,  Vol.  II,  pp.  254, 260, 
262,  266,  283,  287,  289,  290,  296,  316,  328;  Holls’  Peace  Conference  at 
The  Hague,  pp.  306-321. 

* Conference  Internationale  de  la  Paix,  1899,  part  I,  Fifth  Plenary  Ses- 
sion, p.  31;  Final  Act  of  the  International  Peace  Conference,  Vol.  II,  p.  79. 


66 


THE  HAGUE  PEACE  CONFERENCES 


Commission,  have  justified  an  international  peace  conference; 
for,  as  Mr.  HoUs  properly  says,  they, 

...  were  largely,  if  not  wholly,  of  a technical,  military,  or 
naval  character,  and  the  results  obtained  could,  perhaps,  have 
been  accomplished  by  a meeting  of  experts,  corresponding  to 
the  famous  assemblies  of  Geneva  and  Brussels,  or  to  the  Postal 
and  Marine  Conferences  of  a later  date.‘ 

This  statement,  however,  is  not  meant  in  any  way  to  detract 
from  the  importance  of  the  work,  for  an  international  con- 
ference may  well  deal  with  land  and  naval  warfare,  and  by 
international  agreement  remove  the  hardships  and  unneces- 
sary suffering  incident  to  war.  The  purpose  and  the  result  are 
no  doubt  humanitarian,  but  these  various  conventions  pre- 
suppose the  existence  of  war.  The  Conference  was  originated, 
however,  for  the  maintenance  of  general  peace  and  to  secure 
the  establishment  of  the  principles  of  justice  and  right  upon 
which  repose  the  security  of  States  and  the  welfare  of  peoples. 

6.  The  Third  Commission — ^The  Peaceful  Settlement 
OF  International  Disputes 

Article  8 of  the  second  circular  sought  to  specify  in  detail 
the  various  means  by  which  the  maintenance  of  general 
peace  might  be  safeguarded  and  found  it  in  an  agreement 

to  accept  in  principle  the  employment  of  good  offices,  of  media- 
tion and  facultative  arbitration  in  cases  lending  themselves 
thereto,  with  the  object  of  preventing  armed  conflicts  between 
nations,  to  come  to  an  understanding  with  respect  to  the  mode 
of  applying  these  good  offices,  and  to  establish  a uniform  prac- 
tice in  using  them. 

The  importance  of  this  article  and  its  consideration  lay 
in  the  fact  that  it  sought,  by  removing  causes  of  irritation,  to 
prevent  armed  conflict  between  nations  and,  by  providing  a 
substitute  for  war,  to  prevent  the  danger  of  war.  Law-givers 
in  all  ages  have  sought  to  forbid  the  individual  from  a recourse 
to  arms  in  his  own  behalf,  and,  notwithstanding  centuries  of 
experiment,  it  cannot  be  said  that  the  instinct  of  self-help  has 


HoUs’  Peace  Conference,  p.  164. 


GENERAL  SURVEY  OF  THE  FIRST  PEACE  CONFERENCE  67 


been  eradicated  so  far  as  to  compel  an  appeal  to  courts  of 
justice  for  real  or  fancied  wrongs  without  resorting  to  self- 
help  in  times  of  passion.  If  an  individual  nation  is  unable 
by  an  elaborate  and  refined  code  with  penalties  for  its  infrac- 
tion to  prevent  self-redress,  it  is  Utopian  to  hope  that  a con- 
ference could,  by  a single  convention,  without  specific  penal- 
ties for  its  infraction,  prevent  nations,  which  after  all  are 
but  aggregations  of  individuals,  from  a recourse  to  force 
when  national  feeling  and  prejudice  are  aroused.  It  is,  how- 
ever, within  the  range  of  possibility,  and  it  is  the  task  of 
enlightened  statesmanship,  as  far  as  possible,  to  devise 
means  for  the  peaceful  settlement  of  international  disputes 
before  they  have  reached  an  acute  stage.  As  experience 
shows  that  nations  in  moments  of  passion  are  not  able  to  dis- 
cuss impartially  the  facts  involved  in  a particular  dispute, 
and  indeed  are  often  mistaken  as  to  the  fact  and  therefore  as  to 
the  merits  of  the  controversy,  it  would  seem  that  the  creation 
of  machinery  whereby  these  facts  might  be  ascertained  by  a 
neutral  or  impartial  body,  before  passion  had  become  inflamed, 
would  go  far  to  prevent  nations  from  rushing  to  arms.  The 
Third  Commission  of  the  First  Conference  was  fortunate  enough 
to  find  such  means  and  to  create  such  machinery,  and  the 
convention  for  the  peaceful  adjustment  of  international  differ- 
ences not  only  justified  the  calling  of  the  Conference,  but  real- 
ized in  large  and  unexpected  measure  the  hope  of  the  illus- 
trious monarch  to  whom  it  owed  its  being. 

The  Conference  was  here  upon  safe  ground  and  was  able  to 
utilize  the  experience  of  the  immediate  past,  which  has  declared 
itself  in  no  uncertain  manner  for  arbitration  as  a substitute 
for  force.  A careful  consideration  of  Article  8 and  the  result- 
ing convention  for  the  peaceful  adjustment  of  international 
difficulties  shows  that  each  clause  of  Article  8,  as  contained 
in  the  second  circular  of  the  Russian  Government,  found  an 
appropriate  place  in  the  convention.  The  inspiration  of  an 
enlightened  and  generous  mind  with  the  cooperation  of  states- 
men and  diplomatists  resulted  in  what  Mr.  Holls  is  pleased  to 
term  the  Magna  Charta  of  international  law. 


68 


THE  HAGUE  PEACE  CONFERENCES 


The  procedure  by  which  this  remarkable  result  was  at- 
tained was  the  same  as  that  followed  by  the  first  two  com- 
missions. The  article  was  referred  to  the  Third  Commission 
which  had  the  good  fortune  to  be  presided  over  by  M.  L6on 
Bourgeois,  to  whose  infinite  tact,  kindness  and  courtesy  and 
genius  in  removing  difficulties,  which,  if  unremoved,  would 
prevent  agreement,  is  due  in  no  small  measure  the  success  of 
the  commission  and  the  justification  of  the  Conference. 

At  the  first  session  of  the  Third  Commission,  M.  Bourgeois 
stated : 

The  Third  Commission  has  this  good  fortune,  that  no  division 
can  exist  among  its  members  on  the  general  ideas  which  are  the 
bases  of  its  work.  They  are  assured  that  they  will  go  forth 
together  in  one  direction  on  a common  pathway. 

The  president’s  duty  is  to  try  to  put  as  far  distant  as  pos- 
sible the  point  upon  this  route  to  which  all  will  be  able  to  con- 
tinue their  journey  together. 

The  president  again  recalls  the  fact  that  the  commission  is 
bound  to  keep  its  deliberations  secret.  A proc^s-verbal  in 
manuscript  will  be  taken  and  preserved  in  the  office  of  the  con- 
ference, where  it  may  be  consulted.  An  analytical  summary 
will  be  printed  and  sent  to  the  members  of  the  commission,  who, 
of  course,  will  be  communicated  with  before  the  publication,  in 
regard  to  the  part  which  concerns  them.  Since  questions  relat- 
ing to  arbitration  present  a unified  character,  the  president 
thinks  there  is  no  need  of  dividing  the  commission  into  sub- 
commissions.* 

At  the  second  session  of  the  commission  held  May  26, 1899, 
M.  Bourgeois  outlined  the  procedure  which  he  deemed  ad- 
visable to  be  followed  by  the  commission.  He  said: 

It  is  proper  first  to  examine  the  general  principle  which 
brings  us  together. 

Do  we  all  agree,  following  the  expression  of  M.  Descamps,  to 
try  to  establish  relations  between  nations  preferably  according 
to  law,  and  to  regulate  them,  in  case  of  dispute,  according  to 
justice?  In  other  words,  is  it  more  desirable  to  have  recourse 
to  peaceful  means  rather  than  to  force  in  settling  disputes  be- 
tween nations? 

If  we  all  agree  upon  this  general  principle,  we  shall  then  seek 
means  of  arriving  at  this  result. 

* Conference  Internationale  de  la  Paix,  1899,  part  IV,  Third  Commission, 
p.  1. 


GENERAL  SURVEY  OF  THE  FIRST  PEACE  CONFERENCE  69 


If  the  daily  work  of  diplomacy,  which  can  assure  friendly 
agreement  directly,  is  lacking,  we  shall  seek  means  for  friendly 
agreement,  indirectly,  by  mediation.  That  could  constitute 
the  first  chapter  of  our  discussions. 

Apart  from  mediation  and  by  means  still  peaceful  but  now 
final,  we  shall  have  to  examine  arbitral  procedure. 

In  the  case  of  recourse  to  arbitration,  we  must  establish  the 
cases  where  this  is  possible,  and  make  a list  of  them. 

We  will  question  next  whether  there  are  cases  where  nations 
can  admit  in  advance  that  this  recourse  should  be  obligatory. 

It  will  next  be  necessary  to  establish  in  advance  an  arbitral 
procedure  accepted  by  all;  on  all  these  points  we  can  take  the 
Russian  project,  which  has  just  been  distributed,  for  a guide. 

Having  established  the  cases  where  arbitration  is  conven- 
tionally obligatory  or  optional,  and  the  procedure  being  fixed, 
what  means  shall  be  employed  to  make  the  practice  general? 

Will  it  be  preferable  to  proceed  by  extending  the  system 
of  arbitration  treaties  by  introducing  the  arbitration  clause  in 
international  acts? 

Or,  on  the  contrary,  shall  there  be  established  in  a perma- 
nent manner  an  international  institution  to  which  an  order 
would  be  given: 

1.  Be  it  simply  in  the  guise  of  an  intermediary,  to  remind 
the  parties  of  the  existence  of  the  conventions,  the  possible 
application  of  arbitration  and  offering  to  set  the  procedure  in 
motion ; 

2.  Be  it  as  a means  of  conciliation  previous  to  all  judicial 
discussion; 

3.  Be  it  finally  in  the  form  of  jurisdiction  as  an  international 
tribunal. 

If  the  commission  approves  this  suggestion,  the  order  of 
our  discussions  will  be  expedited.* 

Upon  the  conclusion  of  this  address.  Sir  Julian  Pauncefote, 
whose  name  is  inseparably  connected  with  the  establishment 
of  the  Permanent  Court,  presented  a proposition  for  the  estab- 
lishment of  a permanent  court  to  which  nations  in  litigation 
might  resort  for  arbitration  of  their  difficulties.  He  said: 

Permit  me,  Mr.  President,  to  ask  you  before  going  deeper 
into  the  matter,  if  it  would  not  be  useful  and  opportune  to 
sound  the  commission  on  the  subject  which  I believe  to  be  the 
most  important,  that  is,  the  establishment  of  a permanent 
international  court  of  arbitration,  which  you  have  touched 
upon  in  your  remarks. 

* Conf4rence  Internationale  de  la  Paix,  1899,  part  IV,  Third  Commis- 
sion, pp.  2-3 


70 


THE  HAGUE  PEACE  CONFERENCES 


Many  arbitration  codes  and  rules  of  procedure  have  been 
made,  but  the  procedure  has  up  to  the  present  time  been  regu- 
lated by  the  arbitrators  or  by  general  or  special  treaties. 

Now  it  seems  to  me  that  new  codes  and  rules  of  arbitration, 
whatever  be  their  merit,  do  not  greatly  advance  the  great  cause 
which  brings  us  together. 

“ If  we  want  to  make  a step  forward,  I believe  that  it  is  abso- 
lutely necessary  to  organize  a permanent  international  tribunal 
which  may  be  able  to  assemble  at  once  upon  the  request  of  the 
disputing  nations.  This  principle  being  established,  I do  not 
believe  that  we  shall  have  much  difficulty  in  agreeing  on  the 
details.  The  necessity  of  such  a tribunal  and  the  advantages 
which  it  would  offer,  as  well  as  the  encouragement  and  even 
inspiration  which  it  would  give  to  the  cause  of  arbitration,  has 
been  demonstrated  with  as  much  eloquence  and  force  and  clear- 
ness, by  our  distinguished  colleague,  M.  Descamps,  in  his  inter- 
esting essay  on  arbitration,  an  extract  from  which  is  included  in 
the  acts  and  documents  so  graciously  furnished  to  the  confer- 
ence by  the  Netherlands  Government.  There  is  therefore  noth- 
ing more  for  me  to  say  upon  this  subject,  and  I shall  be  grateful 
to  you,  Mr.  President,  if  before  going  any  further,  you  consent 
to  receive  the  ideas  and  sentiments  of  the  commission  upon  the 
proposition  which  I have  the  honor  to  submit  concerning  the 
establishment  of  a permanent  international  court  of  arbitra- 
tion.* 

At  the  beginning  of  its  labors,  the  commission  found  itself  in 
the  presence  of  a Russian  project  concerning  good  offices  and 
mediation,  a draft  convention  for  voluntary  and  obligatory 
arbitration,  a code  of  arbitration  and  a British  motion  for  the 
establishment  of  a court  of  arbitration.  The  president  con- 
sidered it  difficult  to  discuss  the  texts  in  the  commission,  and 
he  therefore  proposed  the  formation  of  a special  commission 
charged  with  their  examination.  But  before  naming  the 
commission,  he  declared  that  the  assembly  had  unanimously 
recognized  that  it  is  preferable  to  resort  to  pacific  means  rather 
than  to  force  for  the  adjustment  of  disputes  between  nations. 

“ I think,”  he  said,  “that  the  affirmation  of  this  idea  common 
to  all,  fixes  the  bounds  of  this  meeting  and  permits  us  to  pass 
advantageously  to  the  discussion  of  its  applications.”* 

' Conference  Internationale  de  la  Paix,  1899,  part  IV,  Third  Commis- 
sion, p.  3. 

*Ibid.,  p.  4. 


GENERAL  SURVEY  OP  THE  FIRST  PEACE  CONFERENCE  71 

Leaving  the  details  to  subsequent  consideration,  it  appears 
that  the  procedure  followed  by  the  Third  Commission  was 
similar  to  that  previously  described,  with  the  difference  that 
the  commission  did  not  divide  itself  into  sub-committees, 
but  appointed  a committee  of  examination,  to  which  the  vari- 
ous projects  were  submitted,  considered  and  reported  to  the 
commission  for  eventual  adoption.  As  is  well  known,  the 
committee  of  examination  justified  its  appointment  and  pre- 
sented to  the  commission  and  Conference  the  convention  which 
is  the  permanent  monument  of  the  First  Hague  Peace  Con- 
ference. The  result,  however,  was  not  reached  without  diffi- 
culty, and  at  one  time  it  seemed  unlikely  that  the  delegates 
would  be  able  to  agree.  Germany  objected  to  the  establish- 
ment of  the  Permanent  Court  of  Arbitration,  and,  to  quote 
Rolls, 

the  sessions  were  suspended  by  common  consent,  in  order  to 
give  an  opportunity  to  the  German  representative.  Dr.  Zorn, 
to  proceed  to  Berlin  in  order  to  discuss  the  objections  which  had 
been  raised,  which  were  technical,  though  by  no  means  friv- 
olous, in  their  nature.  At  the  suggestion  of  Prince  Munster  and 
Ambassador  White,  and  with  the  cordial  assent  of  the  other 
members  of  the  Committee,  Mr.  Holls  of  the  United  States  also 
went  to  consult  with  Prince  Hohenlohe  and  Count  von  Biilow 
upon  the  same  subject,  and  the  joint  efforts  of  the  two  delegates 
were  completely  successful.  Other  similar  crises  were  happily 
averted  without  friction  or  publicity.^ 

The  incident  briefly  alluded  to  in  the  quotation  from  Mr. 
Holls  was  of  the  gravest  importance,  and  threatened  to  wreck 
the  Conference;  for  hope  had  centered  around  the  work  of  the 
Third  Commission,  and  it  was  believed — not  without  reason — 
that  a convention  for  the  peaceful  settlement  of  international 
difficulties  would  not  only  satisfy  public  opinion,  but  would 
justify  in  itself  the  call  of  the  Conference.  The  original  skepti- 
cism with  which  the  delegates  assembled  at  The  Hague,  the 
pessimism  which  pervaded  the  early  days  of  its  session,  had 
given  way  to  the  belief  that  something  of  permanent  value 
would  be  accomplished.  The  failure  of  the  First  Commission 


‘ Holls’  Peace  Conference,  pp.  170-171. 


72 


THE  HAGUE  PEACE  CONFERENCES 


to  reach  an  agreement  upon  the  limitation  or  decrease  of 
armament  caused  not  a little  disappointment.  The  success  of 
the  Second  Commission  in  codifying,  in  a highly  acceptable 
form,  the  laws  and  customs  of  warfare  on  land,  and  the  exten- 
sion of  the  beneficent  principles  of  the  Red  Cross  to  maritime 
warfare,  show  that  the  Conference  would  not  have  met  and 
labored  in  vain.  But  the  hopes  of  the  friends  of  peace  were 
centered  in  the  Third  Commission.  It  was  not  enough  to  con- 
secrate good  offices  and  mediation  by  an  international  agree- 
ment, nor  was  the  establishment  of  a commission  of  inquiry 
for  the  ascertainment  of  disputed  facts  a sufficient  concession 
to  an  expectant  and  enlightened  public  opinion.  The  friends 
of  international  progress  and  peace  demanded  a recognition 
of  the  principle  of  arbitration,  the  establishment  of  a tribunal 
of  arbitration,  and  a code  of  procedure  for  the  judicial  settle- 
ment of  international  differences.  The  American  delegation 
went  to  the  Conference  instructed  to  secure  a permanent  tri- 
bunal;* Great  Britain,  uninstructed,  it  would  seem,  on  this 
point,  accepted  the  idea,  and  Sir  Julian  Pauncefote  introduced 
a project  which  served  as  the  basis  of  discussion.  The  Rus- 
sian delegation  espoused  the  idea  and  presented  a project  dur- 
ing the  course  of  the  proceedings.  The  possibility  of  a tribunal 
appealed  to  the  imagination  and  invoked  the  enthusiasm  of 
the  delegates;  and  although  Germany  hesitated  and  Austria 
took  the  matter  under  advisement,  the  belief  became  general 
that  opposition  to  a permanent  tribunal  of  arbitration  would 
yield  to  compromise  and  conciliation,  and  that  a permanent 
tribunal  would  be  established. 

Under  date  of  May  24,  1899,  Mr.  Andrew  D.  White,  first 
delegate  of  the  United  States,  noted  in  the  interesting  diary 
which  he  kept  of  the  proceedings  of  The  Hague,  an  interview 
with  Count  Munster,  on  the  subject  of  arbitration: 

“To  my  great  regret,”  he  says,  “I  found  him  entirely  opposed 
to  it,  or,  at  least,  entirely  opposed  to  any  well-developed  plan. 
He  did  not  say  that  he  would  oppose  a moderate  plan  for 

Andrew  D.  White’s  Autobiography,  Vol.  II,  p.  265;  Instructions  to 
the  International  Peace  Conference,  Vol.  II,  pp.  8-9. 


GENERAL  SURVEY  OF  THE  FIRST  PEACE  CONFERENCE  73 

voluntary  arbitration,  but  he  insisted  that  arbitration  must  be 
injurious  to  Germany;  that  Germany  is  prepared  for  war  as  no 
other  country  is  or  can  be;  that  she  can  mobilize  her  army  in 
ten  days;  and  that  neither  France,  Russia,  nor  any  other  power 
can  do  this.  Arbitration,  he  said,  would  simply  give  rival 
powers  time  to  put  themselves  in  readiness,  and  would  there- 
fore be  a great  disadvantage  to  Germany. 

Mr.  White’s  Diary  is  full  of  references  to  Count  Munster, 
and  one  can  not  help  but  admire  the  gentle  and  tactful  way 
in  which  Mr.  White  familiarized  Count  Munster  with  the 
advantages  of  arbitration,  and  of  a permanent  court  for  its 
administration  and  development.  Under  date  of  June  9, 
Mr.  White  writes; 

At  6 o’clock  Dr.  Holls,  who  represents  us  upon  the  sub- 
committee on  arbitration,  came  in  with  most  discouraging 
news.  It  now  appears  that  the  German  Emperor  is  determined 
to  oppose  the  whole  scheme  of  arbitration,  and  will  have  noth- 
ing to  do  with  any  plan  for  a regular  tribunal,  whether  as  given 
in  the  British  or  the  American  scheme.  This  news  comes  from 
various  sources,  and  is  confirmed  by  the  fact  that,  in  the  sub- 
committee, one  of  the  German  delegates.  Professor  Zorn  of 
Kbnigsberg,  who  had  become  very  earnest  in  behalf  of  arbitra- 
tion, now  says  that  he  may  not  be  able  to  vote  for  it.  There 
are  also  signs  that  the  German  Emperor  is  influencing  the  minds 
of  his  allies — the  sovereigns  of  Austria,  Italy,  Turkey,  and 
Roumania — leading  them  to  oppose  it.^ 

On  June  13,  Mr.  White  records  that 

This  morning  come  more  disquieting  statements  regarding 
Germany.  There  seems  no  longer  any  doubt  that  the  German 
Emperor  is  opposing  arbitration,  and,  indeed,  the  whole  work 
of  the  conference,  and  that  he  will  insist  on  his  main  allies,  Aus- 
tria and  Italy,  going  with  him.  Count  Nigra,  who  is  personally 
devoted  to  arbitration,  allowed  this  in  talking  with  Dr.  Holls; 
and  the  German  delegates — all  of  whom,  with  the  exception 
of  Count  Munster,  are  favorably  inclined  to  a good  arbitration 
plan — show  that  they  are  disappointed 

There  seems  danger  of  a catastrophe.  Those  of  us  who  are 
faithful  to  arbitration  plans  will  go  on  and  do  the  best  we  can; 
but  there  is  no  telling  what  stumbling-blocks  Germany  and  her 

‘Andrew  D.  White’s  Autobiography,  Vol.  II,  p.  265. 

* Ibid.,  pp.  293,  294. 


74 


THE  HAGUE  PEACE  CONFERENCES 


allies  may  put  in  our  way;  and,  of  course,  the  whole  result,  with- 
out their  final  agreement,  will  seem  to  the  world  a failure  and, 
perhaps  a farced 

On  June  15,  Count  Munster  called  upon  Mr.  White,  and 
after  speaking  of  the  immunity  of  private  property,  the  sub- 
ject of  arbitration  was  taken  up.  Mr.  White  discussed  the 
advantages  to  Germany  of  arbitration,  and  met  especially  the 
objection  said  to  weigh  with  the  Emperor,  namely,  that  arbi- 
tration would  be  in  derogation  of  his  sovereignty.  Count  Mini- 
ster seemed  much  impressed  by  the  discussion,  and  Mr.  White 
expressed  the  hope  that  he  would 

urge  his  Government  to  take  a better  view  than  that  which 
for  some  time  past  has  seemed  to  be  indicated  by  the  conduct 
of  its  representatives  here.^ 

The  crisis  was  now  reached,  for  on  June  16,  to  quote  again 
from  Mr.  White’s  Diary; 

This  morning  Count  Munster  called  and  seemed  much 
excited  by  the  fact  that  he  had  received  a dispatch  from  Berlin 
in  which  the  German  Government — which,  of  course,  means  the 
Emperor — had  strongly  and  finally  declared  against  everything 
like  an  arbitration  tribunal.  He  was  clearly  disconcerted  by 
this  too  literal  acceptance  of  his  own  earlier  views,  and  said 
that  he  had  sent  to  M.  de  Staal  insisting  that  the  meeting  of  the 
sub-committee  on  arbitration,  which  had  been  appointed  for  this 
day  (Friday),  should  be  adjourned  on  some  pretext  until  next 
Monday;  ‘for,’  said  he,  ‘if  the  session  takes  place  today,  Zorn 
must  make  the  declaration  in  behalf  of  Germany  which  these 
new  instructions  order  him  to  make,  and  that  would  be  a mis- 
fortune. ’ I was  very  glad  to  see  this  evidence  of  change  of 
heart  in  the  count,  and  immediately  joined  him  in  securing  the 
adjournment  he  desired.  The  meeting  of  the  sub-committee 
has  therefore  been  deferred,  the  reason  assigned,  as  I under- 
stand, being  that  Baron  d’Estournelles  is  too  much  occupied 
to  be  present  at  the  time  first  named.  Later  Count  Munster 
told  me  that  he  had  decided  to  send  Professor  Zorn  to  Berlin  at 
once  in  order  to  lay  the  whole  matter  before  the  Foreign  Office 
and  induce  the  authorities  to  modify  the  instructions.  I ap- 
proved this  course  strongly,  whereupon  he  suggested  that  I 

’ Andrew  D.  White’s  Autobiography,  Vol.  II,  p.  298. 

’Ibid.,  p.  306. 


GENERAL  SURVEY  OP  THE  FIRST  PEACE  CONFERENCE  75 

should  do  something  to  the  same  purpose,  and  this  finally  ended 
in  the  agreement  that  Holls  should  go  with  Zorn. 

In  view  of  the  fact  that  Von  Bulow  had  agreed  that  the  Ger- 
man delegates  should  stand  side  by  side  with  us  in  the  confer- 
ence, I immediately  prepared  a letter  of  introduction  and  a 
personal  letter  to  Billow  for  Holls  to  take,  and  he  started 
about  five  in  the  afternoon.  . . 

Mr.  White’s  letter,  given  in  full  in  his  Autobiography^ 
is  an  admirable,  convincing  document,  and,  transmitted  by 
Von  Billow  to  Hohenlohe,  the  Chancellor,  and  the  German 
Emperor,  it  secured  the  reversal  of  the  German  policy,  and 
positive  instructions  in  favor  of  the  proposed  permanent 
court  of  arbitration.  A final  quotation,  under  date  of  June 
23,  from  Mr.  White’s  Autobiography,  gives  the  conclusion  of 
the  incident,  a triumph  of  American  diplomacy  and  an  enduring 
testimonial  of  the  infinite  tact  and  insight  of  Mr.  White  him- 
self.® 

‘ Andrew  D.  White’s  Autobiography,  Vol.  II,  pp.  308,  309. 

’Ibid.,  pp.  309-314. 

’ Dr.  Zorn  has  given  his  version  of  the  incident  in  a charming  article, 
entitled  the  Peace  Movement  and  the  Hague  Conference,  which  appeared 
in  the  Deutsche  Revue  for  November,  1906.  Dr  White  states  first  hand 
his  interview  with  Count  Munster  at  The  Hague.  His  account  of  negotia- 
tions at  Berlin  is  necessarily  based  upon  hearsay.  Dr.  Zorn  as  a witness 
and  active  participant  in  the  negotiations  at  Berlin  speaks  with\uthority, 
and  it  is  therefore  of  interest  as  well  as  importance  that  his  account  be 
given.  For  this  reason  I have  translated  the  material  portion  of  Dr. 
Zorn’s  article  to  which  the  writer  kindly  called  my  attention. 

“The  opinion  has  gone  abroad  that  the  American  Delegate  Holls  exerted 
a decisive  influence  on  the  course  of  the  deliberations,  and  that  he  even 
deserves  the  credit  for  Germany’s  decision  to  agree  to  the  creation  of  a 
permanent  court  of  arbitration  and  thus  avert  the  dangers  lying  in 
Germany’s  unfavorable  attitude.  It  is  true  that  Holls  himself  does  not 
state  this  in  his  work  The  Peace  Conference’  p.  171,  but  passes  over 
the  matter  with  a few  general  phrases  and  contents  himself  with  the  state- 
ment that  ‘the  joint  efforts  of  the  |two  delegates  were  completely  suc- 
cessful.’ Miinsterberg,  however,  in  his  work  on  The  Americans,  p. 
309,  and  White  in  his  ‘reminiscences,’  directly  state,  and  Miinsterberg 
assured  me  by  letter,  that  he  had  received  this  communication  from  Holls, 
who  had  died  in  the  meantime.  In  his  work  on  'The  Americans  Miin- 
sterberg  says:  ‘America  also  became  an  influential  factor  in  the  Hague 
Court  of  Arbitration.  When  the  proceedings  there  were  threatening 
failure  on  account  of  the  opposition  of  several  European  nations,  the 


76 


THE  HAGUE  PEACE  CONFERENCES 


But  the  great  matter  of  the  day  was  the  news,  which  has  not 
yet  been  made  public,  that  Prince  Hohenlohe,  the  German 
chancellor,  has  come  out  strongly  for  the  arbitration  tribunal, 
and  has  sent  instructions  here  accordingly.  This  is  a great 
gain,  and  seems  to  remove  one  of  the  worst  stumbling-blocks. 
But  we  will  have  to  pay  for  this  removal,  probably,  by  giving 
up  section  10  of  the  present  plan,  which  includes  a system  of 
obligatory  arbitration  in  various  minor  matters — a system 
which  would  be  of  use  to  the  world  in  many  ways.  While 
the  American  delegation,  as  stated  in  my  letter  which  Holls 
took  to  Billow,  and  which  has  been  forwarded  to  the  Emperor, 
will  aid  in  throwing  out  of  the  arbitration  plan  everything  of 
an  obligatory  nature,  if  Germany  insists  upon  it,  I learn  that 
the  Dutch  Government  is  much  opposed  to  this  concession, 
and  may  publicly  protest  against  it.‘ 

American  Government  sent  its  emissaries  to  the  center  of  opposition  and 
secured  adherents  to  its  desire  for  peace.’ 

“And  in  his  memorial  address  on  Holls  in  the  Columbia  University 
Miinsterberg  says:  ‘It  was  due  to  his  own  personal  efforts  that  Germany 
desisted  at  a decisive  moment  from  her  opposition  to  the  American  propo- 
sitions at  the  Hague  Conference.’ 

“This  story  is  a fable,  and  it  is  necessary  that  this  fact  be  established. 

“The  esteem  in  which  the  American  Ambassador  White  was  held  in  Berlin 
is  well  known,  and  if  he  communicated  his  idea  of  the  situation  to  the 
German  officials  it  was  no  doubt  interesting  to  them.  That  Holls  went 
to  Germany  simultaneously  with  the  German  delegate  and  remained  there 
several  days  is  likewise  correct.  It  is  also  true  that  Holls  was  received 
by  the  aged  Imperial  Chancellor,  Prince  Hohenlohe,  in  order  that  he 
might  communicate  his  idea  of  the  situation  to  the  latter.  Holls  probably 
had  instructions  from  Ambassador  White  to  do  this. 

“But  neither  Holls  nor  the  aged  Prince  Hohenlohe,  who  was  then  Imperial 
Chancellor,  had  anything  to  do  with  the  discussion  which  preceded  the 
decision  or  with  the  decision  itself.  The  work  on  these  matters  was  per- 
formed entirely  within  the  Foreign  Office  under  the  direction  of  the  then 
Secretary  of  State,  von  Billow,  now  Imperial  Chancellor.  Holls  was  not 
received  by  the  latter  at  that  time,  and  returned  to  The  Hague  by  way 
of  Hamburg.  As  far  as  the  preliminary  official  work  was  concerned,  the 
decision  was  reached  in  the  Foreign  Office  without  any  American  influence, 
and  the  credit  for  it  is  due  to  the  then  Secretary  of  State  von  Billow. 
Everything  else  is,  to  repeat  it  emphatically,  pure  fable.  This  disclosure 
of  the  facts  is  especially  necessary  in  view  of  the  fact  that  the  central 
organ  of  the  Peace  advocates,  the  Friedens-Warte,  published  in  Berlin 
considers  as  the  absolute  truth  and  publishes  the  statement  that  the 
German  Empire  only  consented  to  the  Hague  Court  of  Arbitration  in  con- 
sequence of  strong  pressure  brought  to]  bear  by  America.” — Deutsche 
Revue,  November,  1906,  pp.  141-142. 

* A curious  part  of  the  means  used  in  bringing  about  this  change  of 


GENERAL  SURVEY  OF  THE  FIRST  PEACE  CONFERENCE  77 


Mr.  White  was  right  in  his  belief  that  Article  10  of  the 
Russian  project,  already  approved  by  the  sub-committee, 
prescribing  compulsory  arbitration  in  various  minor  matters, 
would  have  to  be  sacrificed.^  But  the  establishment  of  the 
Permanent  Court  and  the  recognition  of  voluntary  arbitration 
were  worth  the  price.  It  is  not  without  interest  to  note,  in 
passing,  that  the  opposition  of  Germany  in  1907  to  a modified 
form  of  Article  10  defeated  the  treaty  of  compulsory  arbitration, 
voted  by  the  representatives  of  thirty-two  States  at  the 
Second  Conference. 

In  the  course  of  the  session,  there  were  three  other  instances 
which  threatened  unanimity,  although  they  were  not  serious 
enough  to  be  regarded  as  crises.  They  related  to  the  wording 
as  well  as  to  the  obligation  involved  in  Articles  9,  27,  and 
55  of  the  convention  for  the  peaceful  adjustment  of  inter- 
national differences. 

Some  of  the  smaller,  especially  the  Balkan  States,  feared 
that  Article  9,  establishing  a commission  of  inquiry,  although 
limited  to  the  examination  and  ascertainment  of  facts,  might 
interfere  seriously  with  their  internal  organization,  and  the 
opposition  led  by  M.  Beldiman  of  Roumania  was  embarrass- 
ing as  well  as  bitter.  Mr.  White’s  entry  in  his  Diary,  under 
date  of  July  19,  sufficiently  states  the  controversy  and  the 
reasons  supposed  to  influence  the  opposition; 

Field  day  in  the  arbitration  committee.  A decided  sen- 
sation was  produced  by  vigorous  speeches  by  my  Berlin  col- 
league, Beldiman,  of  the  Roumanian  delegation,  and  by  Servian, 

opinion  was  the  pastoral  letter,  elsewhere  referred  to,  issued  by  the  Protes- 
tant Episcopal  bishop  of  Texas,  calling  for  prayers  throughout  the  State 
for  the  success  of  the  conference  in  its  efforts  to  diminish  the  horrors  of 
war.  This  pastoral  letter,  to  which  I referred  in  my  letter  to  Minister  von 
Billow,  I intrusted  to  Holls,  authorizing  him  to  use  it  as  he  thought  fit. 
He  showed  it  to  Prince  Hohenlohe,  and  the  latter,  although  a Roman 
Catholic,  was  evidently  affected  by  it,  and  especially  by  the  depth  and 
extent  of  the  longing  for  peace  which  it  showed.  It  is  perhaps  an  interest- 
ing example  for  an  indirect  “answer  to  prayer,”  since  it  undoubtedly 
strengthened  the  feelings  in  the  prince  chancellor’s  mind  which  led  him  to 
favor  arbitration. — Autobiography,  Vol.  II,  p.  322. 

‘ Ibid.,  pp.  321-322. 


78 


THE  HAGUE  PEACE  CONFEKENCES 


Greek,  and  other  delegates,  against  the  provision  for  commissions 
d'enquite — De  Martens,  Descamps,  and  others  making  vigor- 
ous speeches  in  behalf  of  them.  It  looked  as  if  the  Balkan  states 
were  likely  to  withdraw  from  the  Conference  if  the  commission 
d’enquite  feature  was  insisted  upon:  they  are  evidently  afraid 
that  such  “examining  commissions”  may  be  sent  within  their 
boundaries  by  some  of  their  big  neighbors — Russia,  for  example 
— to  spy  out  the  land  and  start  intrigues.* 

It  should  be  said,  however,  that  in  a spirit  of  compromise 
and  conciliation,  Article  9 was  accepted  as  framed  by  M. 
Beldiman  and  has  proved  satisfactory  in  practice. 

The  next  incident  arose  in  connection  with  Article  27,  which 
provides  that 

the  Signatory  Powers  consider  it  their  duty,  in  case  a serious 
dispute  threatens  to  break  out  between  two  or  more  of  them, 
to  remind  these  latter  that  the  Permanent  Court  of  Arbitration 
is  open  to  them. 

The  Balkan  States  feared  that  the  exercise  of  this  “duty” 
might  lead  to  intervention;  that  it  was  a provision  in  favor  of 
the  great  powers,  and  against  the  interest  of  the  smaller, 
because  the  latter  could  not,  with  any  propriety,  call  the  court 
to  the  notice  of  the  great  powers,  whereas  the  great  powers, 
by  reason  of  their  greatness,  might  insist  that  the  small  powers 
submit  their  controversy  to  the  Permanent  Court.  Count 
Nigra  of  Italy  disclaimed  any  intention  to  exercise  the  duty  in 
an  oppressive  way,  and  denied  that  a distinction  between 
great  and  small  powers  existed  in  the  Conference;  whereupon, 
to  quote  again  Mr.  White’s  Autobiography, 

Bourgeois,  from  the  chair,  gave  us  a specimen  of  first-rate 
French  oratory.  He  made  a most  earnest  appeal  to  the  dele- 
gates of  the  Balkan  States,  showing  them  by  such  a system 
of  arbitration  as  is  now  proposed  the  lesser  powers  would  be 
the  very  first  to  profit,  and  he  appealed  to  their  loyalty  to 
humanity.^ 

Mr.  White’s  comment  fails  to  do  justice  to  M.  Bourgeois’ 
address  on  this  occasion,  because  it  was  and  undoubtedly  wiU 

‘ Andrew  D.  White’s  Autobiography,  p.  336. 

'Ibid.,  p.  337. 


GENEBAL  SURVEY  OF  THE  FIRST  PEACE  CONFERENCE  79 


remain  a masterpiece,  which,  as  Mr.  Rolls  says,  ‘'ended  with 
an  outburst  of  eloquence  which  electrified  the  conference 
and  led  to  a withdrawal  of  all  hostile  motions.” 

“ The  moral  duty, ” said  Mr.  Bourgeois,  “of  the  provisions 
of  Article  27  is  to  be  found  entirely  in  the  fact  that  a com- 
mon duty  for  the  maintenance  of  peace  among  men  is  re- 
cognized and  affirmed  among  the  nations.  Do  you  believe 
that  it  is  a small  matter  that  in  this  Conference — not  in  an 
assembly  of  theorists  and  philosophers,  debating  freely  and 
entirely  upon  their  own  responsibility,  but  in  an  assembly 
where  the  Governments  of  nearly  all  the  civilized  nations  are 
officially  represented — the  existence  of  this  international  duty 
has  been  proclaimed,  and  that  the  idea  of  this  duty,  henceforth 
I introduced  forever  into  the  conscience  of  the  people,  is  imposed 
, for  the  future  upon  the  acts  of  the  Government  and  of  the 

j nations?  My  colleagues  who  oppose  this  Article  will,  I hope, 

I permit  me  to  say  this;  I fear  their  eyes  are  not  fixed  on  what 

I should  be  their  real  purpose.  In  this  question  of  arbitration 

they  appeared  to  be  concerned  with  the  conflicting  interests  of 
the  great  and  small  Powers.  I say,  with  Count  Nigra,  here 
there  are  no  great,  no  small  Powers;  all  are  equal  in  view  of  the 
I task  to  be  accomplished.  But  should  our  work  give  greater 
I advantages  to  any  Powers,  would  it  not  assuredly  be  to  the 
I weakest? 

j,  “Yesterday,  in  the  Comity  d’Examen,  I spoke  in  the  same 
I strain  to  my  opposing  colleagues.  Is  not  every  establishment 
I of  a tribunal,  every  triumph  of  an  impartial  and  well-considered 

I decision  over  warring  interests  and  passions,  one  more  safeguard 

for  the  weak  against  the  abuses  of  power? 

? “Gentlemen,  what  is  now  the  rule  among  individual  men  will 
I hereafter  obtain  among  nations.  Such  international  institu- 

I tions  as  these  will  be  the  protection  of  the  weak  against  the 

I powerful.  In  the  conflicts  of  brute  force,  where  fighters  of 

'l  flesh  and  with  steel  are  in  line,  we  may  speak  of  great  Powers  and 
small,  of  weak  and  of  mighty.  When  swords  are  thrown  in  the 
I balance,  one  side  may  easily  outweigh  the  other.  But  in  the 

!■  weighing  of  rights  and  ideas  disparity  ceases,  and  the  rights  of 

I the  smallest  and  the  weakest  Powers  count  as  much  in  the  scales 

as  those  of  the  mightiest. 

B“This  conviction  has  guided  our  work,  and  throughout  its 
pursuit  our  constant  thought  has  been  for  the  weak.  May 
they  at  least  understand  our  idea,  and  justify  our  hopes,  by 
joining  in  the  effort  to  bring  the  future  of  Humanity  under  the 
majesty  of  the  Law.’  s, 

ji  ' Conf4rence  Internationale  de  la  Paix,  1899,  part  IV,  Third  Commis- 
i sion,  pp.  56-57;  Holls’  Peace  Conference,  pp.  273-275. 


I 

'I 


80 


THE  HAGUE  PEACE  CONFERENCES 


Although  heartily  in  favor  of  the  article,  the  Ajuerican  dele- 
gation was  in  an  embarrassing  position;  for  non-intervention  in 
European  affairs,  and  the  refusal  to  permit  European  inter- 
vention in  American  affairs,  have  been  a cardinal  point  of 
American  diplomacy.  To  quote  again  Mr.  White’s  Diary, 
under  date  of  July  24 : 

For  some  days — in  fact,  ever  since  Captain  Mahan  on  the 
22d  called  attention  to  Article  27  of  the  arbitration  convention 
as  likely  to  be  considered  an  infringement  of  the  Monroe  Doc- 
trine— our  American  delegation  has  been  greatly  perplexed. 
We  have  been  trying  to  induce  the  French,  who  proposed 
Article  27,  and  who  are  as  much  attached  to  it  as  is  a hen  to  her 
one  chick,  to  give  it  up,  or,  at  least,  to  allow  a limiting  or  ex- 
planatory clause  to  be  placed  with  it.  Various  clauses  of  this 
sort  have  been  proposed.  The  article  itself  makes  it  the  duty 
of  the  other  Signatory  Powers,  when  any  two  nations  are  evi- 
dently drifting  toward  war,  to  remind  these  two  nations  that 
the  arbitration  tribunal  is  open  to  them.  Nothing  can  be  more 
simple  and  natural;  but  we  fear  lest,  when  the  convention  comes 
up  for  ratification  in  the  United  States  Senate,  some  over-sen- 
sitive patriot  may  seek  to  defeat  it  by  insisting  that  it  is  really 
a violation  of  time-honored  American  policy  at  home  and  abroad 
— the  policy  of  not  entangling  ourselves  in  the  affairs  of  foreign 
nations,  on  one  side,  and  of  not  allowing  them  to  interfere  in 
our  affairs,  on  the  other.  ‘ 

And  under  date  of  July  25; 

All  night  long  I have  been  tossing  about  in  my  bed  and 
thinking  of  our  declaration  of  the  Monroe  Doctrine  to  be  brought 
before  the  conference  today.  We  all  fear  that  the  conference 
will  not  receive  it,  or  will  insist  on  our  signing  without  it  or  not 
signing  it  at  all.^  .... 

In  the  afternoon  to  the  House  in  the  Wood,  where  the 

Final  Act  was  read We  had  taken  pains  to  see 

a number  of  the  leading  delegates,  and  all,  in  their  anxiety  to 
save  the  . . . arbitration  plan,  agreed  that  they  would  not 

oppose  our  declaration.  It  was  therefore  placed  in  the  hands 
of  Raffalovitch,  the  Russian  secretary,  who  stood  close  beside 
the  president,  and  as  soon  as  the  Final  Act  had  been  recited 
he  read  this  declaration  of  ours.  This  was  then  brought  before 

* Andrew  D.  White’s  Autobiography,  Vol.  II,  p.  339. 

’ Ibid.,  p.  340. 


GENERAL  SURVEY  OF  THE  FIRST  PEACE  CONFERENCE  81 


the  Conference  in  plenary  session  by  M.  de  Staal,  and  the  Con- 
ference was  asked  whether  any  one  had  any  objection,  or  any- 
thing to  say  regarding  it.  There  was  a pause  of  about  a minute, 
which  seemed  to  me  about  an  hour.  Not  a word  was  said, — 
in  fact,  there  was  dead  silence, — and  so  our  declaration  embody- 
ing a reservation  in  favor  of  the  Monroe  Doctrine  was  duly 
recorded  and  became  part  of  the  proceedings. 

Rarely  in  my  life  have  I had  such  a feeling  of  deep  relief; 
for,  during  some  days  past,  in  has  looked  as  if  the  arbitration 
project,  so  far  as  the  United  States  is  concerned,  would  be 
wrecked  on  that  wretched  little  Article  27} 

In  regard  to  Article  55,  the  instructions  of  the  American 
delegation  required  that  a revision  of  the  arbitral  award, 
pronounced  by  the  arbitration  tribunal,  should  be  subject  to 
revision.^ 

M.  de  Martens,  with  a very  respectable  following,  insisted 
that  an  arbitral  decision  should  be  accepted  as  final,  even 
although  wrong;  whereas  Mr.  Holls,  on  behalf  of  the  American 
delegation,  contended,  and  rightly,  that  the  fundamental  pur- 
pose of  the  court  was  to  ascertain  and  administer  justice; 
that  a miscarriage  of  justice  would  prejudice  the  court,  and 
that  the  surest  means  to  settle  a controversy  finally  was  by  a 
judgment,  the  justice  of  which  could  not  be  successfully 
attacked.  After  prolonged  discussions  in  the  sub-committee, 
and  in  the  commission.  Article  55  was  adopted  as  it  now 
stands,  giving  the  parties  the  right  to  reserve,  in  the  agree- 
ment of  arbitration,  a re-hearing  of  the  case.® 

It  thus  appears  that  the  crisis  was  passed,  when  Germany 
accepted  the  Permanent  Court  of  Arbitration,  and  the  various 
discussions  set  forth  at  length  serve  to  show  what  may  be 
accomplished  when  a conference  is  animated  by  a spirit  of 
compromise  and  conciliation  in  the  accomplishment  of  a noble 
work. 

Reserving  for  subsequent  consideration  the  convention  for 

‘Ibid.,  341. 

’ Instructions  to  the  International  (Peace)  Conference  at  The  Hague, 
1899,  Annex  B,  Section  7.  See  Vol.  II,  p.  16. 

’ See  Conference  Internationale  de  la  Paix,  1899,  part  IV,  Third  Com- 
mission, pp  26-31. 


82 


THE  HAGUE  PEACE  CONFERENCES 


the  pacific  adjustment  of  international  disputes,  it  is  sufficient 
for  the  present  purpose  to  say  that  it  recognizes  and  defines 
the  use  of  good  offices  and  mediation  before  or  during  war,  with 
or  without  the  request  of  the  contending  powers;  that  it 
created  an  international  commission  of  inquiry  by  means  of 
which  nations  in  controversy  can  ascertain  the  facts  in  dispute ; 
that  it  provided  a permanent  panel  of  judges  from  which  a 
temporary  tribunal  could  be  formed  for  the  application  of 
law  to  an  international  controversy  and  drafted  a code  of 
arbitral  procedure  for  the  guidance  of  the  tribunal  when 
formed. 

In  order  to  put  in  appropriate  form  the  various  conven- 
tions and  declarations  voted  by  the  commissions,  there  was 
appointed  an  editing  committee,  and  from  its  members  a 
subcommittee  was  selected  to  give  to  the  measures  already 
approved  final  form  and  precision.  The  committee  reported 
to  the  Conference  the  result  of  its  labors,  and,  adopted  and 
approved,  the  various  measures  were  given  the  clearness  and 
precision  necessary  for  international  agreements. 

There  is  one  important  act  not  previously  mentioned,  namely, 
the  Final  Act.  This  sets  forth  the  calling  of  the  Conference, 
enumerates  the  powers  invited  and  present,  states  the  con- 
ventions, the  declarations,  the  resolution,  and  the  six  recom- 
mendations or  voeiix  which  the  Conference  addressed  to  the 
Signatory  Powers  for  discussion  either  by  negotiation  or  at  a 
succeeding  conference.  The  Final  Act,  therefore,  is  the  author- 
itative resume  of  the  work  actually  accomplished  by  the 
Conference,  and  as  such  it  may  be  quoted  in  full  in  order  to 
show  the  positive  results  achieved  by  this  First  International 
Conference,  summoned  without  a preceding  war,  and  whose 
work  will  always  be  a landmark  in  international  law. 

The  International  Peace  Conference,  convoked  In  the  best 
interests  of  humanity  by  His  Majesty  the  Emperor  of  All  the 
Russias,  assembled,  on  the  invitation  of  the  Government  of  Her 
Majesty,  the  Queen  of  the  Netherlands,  in  the  Royal  House  in 
the  Wood  at  The  Hague,  on  the  18th  May,  1899. 

The  Powers  enumerated  in  the  following  list  took  part  in 


GENERAL  SURVEY  OF  THE  FIRST  PEACE  CONFERENCE  83 


the  Conference,  to  which  they  appointed  the  Delegates  named 
below:* 

In  a series  of  meetings,  between  the  18th  May  and  the  29th 
July,  1899,  in  which  the  constant  desire  of  the  Delegates  above 
mentioned  has  been  to  realize,  in  the  fullest  manner  possible, 
the  generous  views  of  the  august  Initiator  of  the  Conference 
and  the  intentions  of  their  Governments,  the  Conference  has 
agreed,  for  submission  for  signature  by  the  Plenipotentiaries, 
on  the  text  of  the  Conventions  and  Declarations  enumerated 
below  and  annexed  to  the  present  Act: 

In  a series  of  meetings,  between  the  18th  May  and  the  29th 
July,  1899,  in  which  the  constant  desire  of  the  Delegates  above 
mentioned  has  been  to  realize,  in  the  fullest  manner  possible, 
the  generous  views  of  the  august  Initiator  of  the  Conference  and 
the  intentions  of  their  Governments,  the  Conference  has  agreed, 
on  the  text  of  the  Conventions  and  Declarations  enumerated 
below  and  annexed  to  the  present  Act: 

I.  Convention  for  the  peaceful  adjustment  of  international 
differences. 

II.  Convention  regarding  the  laws  and  customs  of  war  by  land. 

III.  Convention  for  the  adaptation  to  maritime  warfare 
of  the  principles  of  the  Geneva  Convention  of  the  22d  August, 
1864. 

IV.  Three  Declarations: 

1.  To  prohibit  the  launching  of  projectiles  and  explosives 
from  balloons  or  by  other  similar  new  methods. 

2.  To  prohibit  the  use  of  projectiles,  the  only  object  of 
which  is  the  diffusion  of  asphyxiating  or  deleterious  gases. 

3.  To  prohibit  the  use  of  bullets  which  expand  or  flatten 
easily  in  the  human  body,  such  as  bullets  with  a hard  envelope, 
of  which  the  envelope  does  not  entirely  cover  the  core,  or  is 
pierced  with  incisions. 

These  Conventions  and  Declarations  shall  form  so  many 
separate  Acts.  These  Acts  shall  be  dated  this  day,  and  may 
be  signed  up  to  the  31st  December,  1899,  by  the  Plenipoten- 
tiaries of  the  Powers  represented  at  the  International  Peace 
Conference  at  the  Hague. 

Guided  by  the  same  sentiments,  the  Conference  has  adopted 
unanimously  the  following  Resolution: 

“The  Conference  is  of  opinion  that  the  restriction  of  military 
charges,  which  are  at  present  a heavy  burden  on  the  world, 
is  extremely  desirable  for  the  increase  of  the  material  and  moral 
welfare  of  mankind.” 

It  has,  besides,  formulated  the  following  wishes: 

1.  The  Conference,  taking  into  consideration  the  prelimi- 
nary steps  taken  by  the  Swiss  Federal  Government  for  the  revi- 

' For  the  names  of  the  delegates,  see  Vol.  II,  pp.  63-77. 


84 


THE  HAGUE  PEACE  CONFERENCE 


sion  of  the  Geneva  Convention,  expresses  the  wish  that  steps 
may  be  shortly  taken  for  the  assembly  of  a Special  Conference 
having  for  its  object  the  revision  of  that  Convention. 

This  wish  was  voted  unanimously. 

2.  The  Conference  expresses  the  wish  that  the  questions 
of  the  rights  and  duties  of  neutrals  may  be  inserted  in  the  pro- 
gram of  a Conference  in  the  near  future. 

3.  The  Conference  expresses  the  wish  that  the  questions 
with  regard  to  rifles  and  naval  guns,  as  considered  by  it,  may  be 
studied  by  the  Governments  with  the  object  of  coming  to  an 
agreement  respecdng  the  employment  of  new  types  and  calibers. 

4.  The  Conference  expresses  the  wish  that  the  Govern- 
ments, taking  into  consideration  the  proposals  made  at  the  Con- 
ference, may  examine  the  possibility  of  an  agreement  as  to  the 
limitation  of  armed  forces  by  land  and  sea,  and  of  war  budgets. 

5.  The  Conference  expresses  the  wish  that  the  proposal 
which  contemplates  the  declaration  of  the  inviolability  of  pri- 
vate property  in  naval  warfare,  may  be  referred  to  a subsequent 
Conference  for  consideration. 

6.  The  Conference  expresses  the  wish  that  the  proposal  to 
settle  the  question  of  the  bombardment  of  ports,  towns,  and 
villages  by  a naval  force  may  be  referred  to  a subsequent  Con- 
ference for  consideration. 

The  last  five  wishes  were  voted  unanimously,  saving  some 
abstentions. 

In  faith  of  which,  the  Plenipotentiaries  have  signed  the 
present  Act,  and  have  aflaxed  their  seals  thereto. 

Done  at  The  Hague,  29th  July,  1899,  in  one  copy  only, 
which  shall  be  deposited  in  the  Ministry  for  Foreign  Affairs, 
and  of  which  copies,  duly  certified,  shall  be  delivered  to  all  the 
Powers  represented  at  the  Conference. 

With  the  signing  of  the  Final  Act  and  the  various  declara- 
tions, which  took  place  on  July  29,  the  labors  of  the  First  Peace 
Conference  closed.  It  was  generally  known  that  Holland  had 
wished  the  Papacy  to  be  represented  at  the  conference.  Oppo- 
sition from  influential  quarters  prevented  the  realization  of 
this  desire,  but  the  Dutch  Government  requested  that  a tele- 
gram informing  the  Pope  of  the  convocation  of  the  conference, 
and  his  reply  be  read  and  spread  upon  the  minutes  of  the  con- 
ference. ‘ This  was  accordingly  done  at  the  Final  Session, 

' Conference  Internationale  de  la  Paix,  1899,  part  I,  Plenary  Session, 
pp.  163-164.  The  following  account  of  the  incident  is  taken  from  Dr. 
White’s  Autobiography,  Vol.  II,  pp.  349-350. 

"There  was  one  proceeding  at  the  final  meeting  of  the  conference  which 


GENERAL  SURVEY  OF  THE  FIRST  PEACE  CONFERENCE  85 


after  which  President  de  Staal  pronounced  an  admirable  closing 
address.  * 

This  address  opened  with  a tribute  of  gratitude  to  the 
Queen  of  the  Netherlands  for  the  hospitality  extended  to  the 
Conference  and  an  expression  of  thanks  to  the  statesmen  and 
jurists  who  presided  over  the  labors  of  the  committees  and 
sub-committees,  to  the  reporters  and  the  secretary,  and  finally 
to  the  delegates.  In  briefly  reviewing  the  labors  of  the  Con- 
ference, he  said  that  the  failure  to  reach  material  results  on  the 
subject  of  the  limitation  of  armaments  and  budgets  was  due 
to  the  technical  difficulties  which  the  commission  was  not  com- 
petent to  consider,  but  that  the  Conference  itself  had  asked  the 
various  Governments  to  take  up  anew  the  consideration  of 
these  themes;  that  the  Conference  had  accepted  the  humani- 
tarian proposals  for  the  extension  to  maritime  warfare  of  the 
application  of  principles  analogous  to  those  which  form  the 
object  of  the  Geneva  Convention  and  had  given  more  definite 
definite  form  to  the  laws  and  customs  of  war  on  land.  He 

I have  omitted,  but  which  really  ought  to  find  a place  in  this  diary.  Just 
before  the  final  speeches,  to  the  amazement  of  all  and  almost  to  the  stupe- 
faction of  many,  the  president,  M.  de  Staal,  handed  to  the  secretary,  with- 
out comment,  a paper  which  the  latter  began  to  read.  It  turned  out  to 
be  a correspondence  which  had  taken  place,  just  before  the  conference 
between  the  Queen  of  the  Netherlands  and  the  Pope. 

“The  Queen’s  letter — written,  of  course,  by  her  ministers,  in  the  desire 
to  placate  the  Catholic  party,  which  holds  the  balance  of  power  in  the 
Netherlands — dwelt  most  respectfully  on  the  high  functions  of  his  Holi- 
ness, etc.,  etc.,  indicating,  if  not  saying,  that  it  was  not  the  fault  of  her 
government  that  he  was  not  invited  to  join  in  the  conference. 

“The  answer  from  the  Pope  was  a masterpiece  of  Vatican  skill.  In 
it  he  referred  to  what  he  claimed  was  his  natural  position  as  a peacemaker 
on  earth,  dwelling  strongly  on  this  point. 

“The  reading  of  these  papers  was  received  in  silence,  and  not  a word 
was  publicly  said  afterward  regarding  them,  though  in  various  quarters 
there  was  very  deep  feeling.  It  was  felt  that  the  Dutch  Government  had 
taken  this  means  of  forestalling  local  Dutch  opposition,  and  that  it  was  a 
purely  local  matter  of  political  partisanship  that  ought  never  to  have  been 
intruded  upon  a conference  of  the  whole  world.” 

For  the  Pope’s  masterly  reply,  see  Conference  Internationale  de  la  Paix, 
1899,  part  I,  Plenary  Session,  p.  164.  For  Dr.  White’s  comment  upon 
it,  see  Autobiography,  Vol.  II,  pp.  351-353. 

’ Conference  Internationale  de  la  Paix,  1899,  part  I,  pp.  164r-166. 


86 


THE  HAGUE  PEACE  CONFERENCES 


called  especial  attention  to  the  adoption  of  the  Convention 
for  the  pacific  adjustment  of  international  differences,  and  in 
this  connection  said: 

Some  years  ago,  in  bringing  to  a close  the  arbitration  on  the 
Behring  Sea  matter,  an  eminent  French  diplomat  expressed 
himself  as  follows:  “We  have  tried  to  maintain  intact  the 
fundamental  principles  of  that  august  International  Law  which 
stretches  like  the  dome  of  heaven  above  all  nations,  and  which 
borrows  the  laws  of  nature  herself  to  protect  the  peoples  of  the 
earth  one  from  another,  in  teaching  them  the  necessities  of 
mutual  good  will.’’ 

The  Peace  Conference,  with  the  authority  which  attaches 
to  an  Assembly  of  civilized  nations,  has  tried  also  to  safeguard, 
in  questions  of  prime  interest,  the  fundamental  principles  of 
International  Law.  It  took  for  its  task  their  definition,  their 
development,  and  their  more  complete  application.  It  has 
created,  on  several  points,  new  laws  answering  to  new  necessi- 
ties, to  the  progress  of  international  life  and  the  exigencies  of 
public  conscience,  and  to  the  best  aspirations  of  humanity. 
Veritably  it  has  accomplished  a work  which  the  future  will  call, 
no  doubt.  The  First  International  Code  of  Peace,  and  to  which 
we  have  given  the  more  modest  name  of  Convention  for  the 
Peaceful  Adjustment  of  International  Differences. 

Continuing  he  said  that  the  task  accomplished  by  the  con- 
ference in  the  particular  elements  of  its  endeavor,  namely, 
the  realization  of  progress  in  regard  to  mediation  and  arbitra- 
tion, was  truly  beautiful  and  meritorious. 

“No  doubt,”  he  remarked,  “that  work  is  imperfect,  but  it  is 
sincerely  practical  and  wise.  It  tries  to  consolidate,  while  safe- 
guarding both  the  two  principles  which  are  the  foundation  of 
International  Law — the  principle  of  sovereignty  of  individual 
States,  and  the  principle  of  a just  international  comity.  It 
gives  precedence  to  that  which  unites  over  all  which  divides. 
It  affirms  that  in  the  new  era  upon  which  we  are  entering  the 
dominant  factor  should  be  good  works,  arising  from  the  necessity 
of  concord,  and  made  fruitful  by  the  cooperation  of  States  seek- 
ing the  realization  of  their  legitimate  interests  in  solid  peace, 
regulated  by  justice.” 

Concluding  his  address,  he  said : 

At  the  present  time,  it  is  perhaps  premature  to  judge  as  a 
whole  the  work  which  has  hardly  been  brought  to  a close.  We 
are,  as  yet,  too  near  its  origin;  we  lack  the  birdseye  view. 


GENERAL  SURVEY  OF  THE  FIRST  PEACE  CONFERENCE  87 


What  is  certain  is,  that  this  work  will  develop  in  the  future;  and, 
as  the  President  of  our  Third  Commission  said,  on  a memor- 
able occasion:  "The  further  we  advance  on  the  road  of  time, 
the  more  clearly  will  its  importance  appear.”  Gentlemen,  the 
first  step  is  taken.  Let  us  unite  our  efforts,  and  profit  from 
experience.  The  good  seed  is  sown;  let  us  await  the  harvest. 


CHAPTER  III 


GENERAL  SURVEY  OF  THE  SECOND  PEACE 
CONFERENCE 

1.  The  Call  op  the  Conference 

The  small  wits  have  busied  themselves  with  the  fact  that  the 
adjournment  of  the  First  Conference  was  followed  by  the  pro- 
longed and  questionable  war  in  South  Africa,  and  that  the 
august  initiator  of  the  Conference,  unwilling  to  reduce  his 
armaments  by  land  or  sea,  or  to  resort  to  the  convention  for 
the  peaceful  settlement  of  international  disputes,  which  his 
conference  adopted,  rushed  headlong  and  madly  into  a war  of 
conquest  with  Japan.  Nor  was  the  fact  uimoted  that  Japan 
absorbed  the  hermit  kingdom  of  Korea  shortly  before  the  meet- 
ing of  the  Second  Conference,  and  that  during  the  very  sessions 
of  this  august  assembly,  France  was  employing  influences 
somewhat  stronger  than  moral  suasion  in  Morocco.  The  ques- 
tion was  often  asked  in  familiar  conversation  at  The  Hague, 
Which  of  the  States  will  be  the  first  to  resort  to  war?  And 
inasmuch  as  Russia,  the  initiator  of  the  First  Conference,  was 
plunged  into  warfare  within  a few  years  after  its  adjournment, 
it  was  suggested  that  the  United  States,  the  real  initiator  of  the 
Second  Conference,  might  succumb  to  the  same  fatality  and  in 
practice  disavow  its  peaceful  professions.  Those  who  will  may 
find  humor  in  the  situation. 

It  is  an  unfortunate  fact  that  these  wars  were  not  prevented 
by  good  offices,  mediation,  or  the  system  of  arbitration  created 
by  the  First  Conference ; but  we  must  never  forget  that  each 
nation  must  determine  for  itself  its  political  policy,  and  that, 
while  it  may  yield  to  good  offices  and  mediation,  arbitration  is 
primarily  for  the  solution  of  legal  questions,  that  is  to  say,  ques- 
tions susceptible  of  judicial  interpretation  or  decision.  Ques- 


88 


GENERAL  SURVEY  OF  THE  SECOND  PEACE  CONFERENCE  89 

tions  of  foreign  policy,  based  solely  upon  political  hopes  and 
aspirations,  do  not  lend  themselves  easily  to  arbitration,  and 
the  desire  of  Great  Britain  to  control  the  future  of  South  Africa, 
as  well  as  the  ambition  of  Russia  to  possess  an  ice-free  port  to 
the  south  of  Vladivostock,  even  at  the  expense  of  Korea,  in- 
volve moral  as  well  as  political  considerations. 

It  is  beside  the  present  purpose  to  determine  whether  these 
questions  might  have  been  settled  peaceably.  It  is  sufficient  to 
state  that  in  1904-1905  Russia  found  itself  involved  in  a great 
and  unsuccessful  war  with  Japan,  which  impaired  its  prestige 
abroad  and  which  threatened  its  peace  at  home. 

The  First  Conference  had  in  mind  a successor,  but  the  years 
were  slipping  by  and  the  friends  of  progress  and  therefore  of 
peace,  became  anxious  lest  the  Conference  of  1899  might  stand 
as  an  isolated  experiment,  and  the  hopes  created  by  its  meeting 
be  defeated,  or  their  realization  indefinitely  postponed.  Pri- 
vate discontent  took  public  form  and  expression,  and  slowly  but 
surely  public  opinion  began  to  influence  those  whom  we  are 
accustomed  to  call  in  our  country  “the  servants  of  the  people.” 
In  1903,  the  American  Peace  Society  presented  to  the  Massa- 
chusetts Legislature  a petition  for  a stated  international  con- 
gress, * and  this  body  in  1903,  true  to  its  traditions  of  1837  and 
1838,  unanimously  passed  the  following  resolutions: 

Resolved,  That  the  Congress  of  the  United  States  be  re- 
quested to  authorize  the  President  of  the  United  States  to 
invite  the  governments  of  the  world  to  join  in  establishing, 
in  whatever  way  they  may  judge  expedient,  a regular  inter- 
national congress  to  meet  at  stated  periods  to  deliberate  upon 
the  various  questions  of  common  interest  to  the  nations  and 
to  make  recommendations  thereon  to  the  governments. 

Resolved,  That  a copy  of  these  resolutions  be  sent  to  the 
senior  senator  and  the  senior  representative  of  Massachusetts 
in  Congress  to  be  presented  in  their  respective  branches. 

In  support  of  the  petition  of  the  American  Peace  Society, 
a memorial  was  presented  to  the  Senate  and  House  of  Repre- 
sentatives of  the  United  States,  relative  to  the  establishment  of 


* For  the  text  of  this  important  document,  with  its  imposing  list  of 
international  conferences,  see  Appendix,  pp.  754-758. 


90 


THE  HAGUE  PEACE  CONFERENCES 


an  international  congress,  signed  by  the  Attorney-General  and 
all  the  justices  of  the  Supreme  Court  of  Pennsylvania,  and 
endorsed  by  the  Governor  of  the  State.  In  the  year  1904,  the 
United  States  celebrated  the  peaceful  acquisition  of  the  territory 
embraced  in  the  Louisiana  Purchase,  and  at  the  meeting  of 
the  Interparliamentary  Union  held  in  St.  Louis,  September  13, 
1904,  under  the  presidency  of  Honorable  Richard  Bartholdt, 
upon  motion  of  the  Honorable  Theodore  E.  Burton,  of  Ohio, 
and  seconded  by  Count  Apponyi,  of  Hungary,  Dr.  Albert  Gobat, 
of  Switzerland,  Dr.  G.  B.  Clark,  of  Great  Britain,  the  Marquis, 
San  Guiliano,  of  Italy,  and  Honorable  Philip  Stanhope,  of 
Great  Britain,  the  following  resolutions  were  unanimously 
adopted : 

Whereas,  Enlightened  public  opinion  and  the  spirit  of  mod- 
ern civilization  demand  that  differences  between  nations  be 
settled  in  the  same  manner  as  controversies  between  individuals 
— that  is,  through  courts  of  justice  and  in  conformity  with  well- 
recognized  principles  of  law, — therefore 

The  Conference  asks  that  the  different  Powers  of  the  entire 
world  delegate  representatives  to  an  international  conference 
which  shall  meet  at  a time  and  place  to  be  designated  by  them 
to  deliberate  upon  the  following  questions: 

(a)  The  subjects  postponed  by  the  Hague  Conference; 

(b)  The  negotiation  of  arbitration  treaties  between  the 
nations  which  shall  be  represented  in  this  conference; 

(c)  The  establishment  of  an  international  congress  which 
shall  meet  at  stated  periods  to  discuss  international  questions: 

And  decides  to  request  respectfully  and  urgently  the  Pres- 
ident of  the  United  States  to  invite  all  the  nations  to  send 
representatives  to  such  a conference.* 

The  resolutions  were  presented  formally  by  Dr.  Gobat  to 
President  Roosevelt,  who  immediately  and  without  reserve 
pledged  himself  to  the  furtherance  of  the  great  cause: 

In  response  to  your  resolutions,  I shall  at  an  early  date 
ask  the  other  nations  to  join  in  a second  congress  at  The  Hague. 
I feel,  as  I am  sure  you  do,  that  our  efforts  should  take  the 
shape  of  pushing  forward  toward  completion  the  work  already 
begun  at  The  Hague  and  that  whatever  is  now  done  should 

> Compte  Rendu  of  the  Interparliamentary  Union  for  1904,  p.  42. 


GENERAL  SURVEY  OF  THE  SECOND  PEACE  CONFERENCE  91 


appear  not  as  something  divergent  therefrom,  but  as  a con- 
tinuance thereof.' 

President  Roosevelt  is  primarily  a man  of  action  and  no 
sooner  did  he  give  his  promise  than  he  set  to  work  to  fulfill 
it.  On  the  twenty-first  day  of  October,  1904,  the  late  Mr. 
John  Hay,  then  Secretary  of  State,  addressed  a circular  note 

to  the  representatives  of  the  United  States  accredited  to  the 
governments  signatory  to  the  acts  of  The  Hague  Conference 
of  1899. 

The  note  reminded  the  Signatory  Governments  of  the  great 
work  accomplished  by  the  Conference  of  1899  and  the  important 
subjects  bequeathed  by  it  to  its  successor  for  discussion.*  An 
encomium  upon  the  achievements  of  the  Interparliamentary 
Union  was  followed  by  the  resolutions  adopted  at  the  confer- 
ence held  in  St.  Louis  in  1904.  After  expressing  the  President’s 
acceptance  of  the  trust  offered  him  by  the  Interparliamentary 
Union,  the  embarrassment  attendant  upon  inviting  the  Powers 
to  a peace  conference  at  a time  when  a great  war  was  in  prog- 
ress was  shown  to  be  more  apparent  than  real  by  citing  the 
calling  of  the  First  Conference  during  the  Spanish-American 
War  and  explaining  that  the  efforts  of  the  Conference  would  lie 
in  the  direction  of  making  more  remote  the  chances  of  future 
wars.  With  these  introductory  remarks,  the  President  directed 
that  it  be  ascertained  to  what  extent  the  Powers  were  disposed 
to  act  in  the  matter.  As  to  the  character  of  the  questions  to  be 
brought  before  the  Second  Peace  Conference,  the  statement 
was  made  that  it  seemed  premature  to  couple  the  tentative 
invitation  with  a categorical  program  of  subjects;  but  the 
importance  of  the  questions  relegated  to  a future  conference  by 

" Compte  Rendu,  p.  61.  In  the  message  to  Congress,  dated  December 
5,  1904,  President  Roosevelt  makes  the  following  statement  of  the  action 
taken  by  him  in  initiating  the  Second  Peace  Conference  at  The  Hague: 

"Furthermore,  at  the  request  of  the  Interparliamentary  Union,  an 
eminent  body  composed  of  practical  statesmen  from  all  countries,  I have 
asked  the  Powers  to  join  with  this  government  in  a Second  Hague  Con- 
ference, at  which  it  is  hoped  that  the  work  already  so  happily  begun  at 
The  Hague  may  be  carried  some  steps  further  toward  completion.” 

■For  text  of  the  note,  see  Vol.  II,  pp.  168-172. 


92 


THE  HAGUE  PEACE  CONFERENCES 


the  Conference  of  1899,  namely,  the  rights  and  duties  of  neutrals, 
the  inviolability  of  private  property  in  naval  warfare,  and  the 
bombardment  of  ports,  towns  and  villages  by  a naval  force,  was 
suggested.  A suggestion  was  also  made  as  to  the  desirability 
of  considering  and  adopting  a procedure  by  which  States  non- 
signatory to  the  original  acts  of  The  Hague  Conference  could 
become  adhering  parties.  It  was  explained  that  the  overture 
for  a second  conference  was  not  designed  to  supersede  other 
calls  for  the  consideration  of  special  topics. 

Finally,  you  will  state  the  President’s  desire  and  hope  that 
the  undying  memories  which  cling  around  The  Hague  as  the 
cradle  of  the  beneficent  work  which  had  its  beginning  in  1899 
may  be  strengthened  by  holding  the  Second  Peace  Conference 
in  that  historic  city. 

The  responses  to  this  note  were  favorable.  They  indicated 
that  the  proposal  was  generally  accepted  in  principle  by  the 
Governments  of  Austria-Hungary,  Denmark,  France,  Germany, 
Great  Britain,  Italy,  Luxemburg,  Mexico,  the  Netherlands, 
Portugal,  Roumania,  Spain,  Sweden  and  Norway,  and  Swit- 
zerland, with  a reservation  in  most  cases  of  future  considera^ 
tion  of  the  date  of  the  Conference  and  the  program  of  sub- 
jects for  discussion.  The  reply  of  Russia  deferred  the  participa- 
tion of  that  Government  until  the  cessation  of  hostilities  in  the 
Far  East,  while  Japan  made  the  reservation  only  that  no  action 
should  be  taken  by  the  Conference  relative  to  the  war.  These 
results  were  embodied  in  a second  circular  note,  dated  Decem- 
ber 16, 1904,  to  the  representatives  of  the  United  States.'  This 
second  note  stated  that,  pending  a definite  agreement  for  meet- 
ing, it  seemed  desirable  that  a comparison  of  views  should  be 
had  among  the  participants  as  to  the  scope  and  nature  of  the 
subjects  to  be  brought  before  the  Second  Conference.  The 
United  States,  however,  was  still  unwilling  to  outline  a pro- 
gram other  than  the  general  topics  suggested  in  the  first  note, 
as  it  seemed  that  the  President  had  already  accomplished 
this  purpose  by  securingthe  general  acceptance  of  his  invita- 

‘ For  text  of  the  note,  see  Vol.  II,  pp.  172-174. 


GENERAL  SURVEY  OF  THE  SECOND  PEACE  CONFERENCE  93 


tion  for  a second  conference.  It  was  suggested  that,  in  view 
of  the  virtual  certainty  that  The  Hague  would  be  the  meet- 
ing place  of  the  Second  Conference,  and  in  view  of  the  fact  that 
an  organized  representation  of  the  signatories  of  the  acts  of 
1899  already  existed  at  that  capital,  the  interchange  of  views 
should  be  effected  through  the  International  Bureau  under  the 
control  of  the  Permanent  Administrative  Council  of  The  Hague, 
as  in  this  way  an  orderly  treatment  of  the  preliminary  consulta- 
tions would  be  insured,  and  the  way  left  clear  for  the  caUing, 
by  the  Government  of  the  Netherlands,  of  a renewed  conference 
at  The  Hague. 

It  was,  therefore,  no  empty  compliment,  but  a solemn  state- 
ment of  historical  fact,  when  the  Second  Conference  stated  in 
the  opening  phrases  of  its  Final  Act,  that  the  Second  Peace 
Conference  at  The  Hague  was  proposed  in  the  first  instance  by 
the  President  of  the  United  States  of  America. 

The  next  step  in  historical  sequence  is  the  conclusion  of  the 
Russo-Japanese  War  by  the  treaty  of  Portsmouth,  signed  Sep- 
tember 5,  1905,  brought  about  by  the  good  offices  of  President 
Roosevelt.  This  happy  event  restored  peace  to  the  Russian 
Empire,  and  allowed  the  Czar  to  carry  out  the  measures  of 
international  peace  with  which  his  name  is  indissolubly  asso- 
ciated. The  preliminary  steps  for  the  holding  of  the  Second 
Conference  had  been  taken  by  President  Roosevelt,  and  nothing 
remained  but  the  issuance  of  the  call  and  the  arrangement  of 
the  details  incident  to  the  meeting  of  a conference.  The  Czar 
had  not  only  called,  but  conceived  the  idea  of  the  First  Confer- 
ence, and  it  was  as  natural  as  it  was  desirable  that  he  should 
call  into  being  for  the  second  time  an  institution  due  to  his 
generous  and  high-minded  activity.  The  Russian  Ambassador 
therefore  waited  upon  President  Roosevelt,  and  stated  that 
Russia  was  ready  to  assume  the  responsibility  of  summoning 
the  Second  Conference,  and,  with  the  chivalry  characteristic  of 
our  President,  he  gladly  renounced  to  Russia  the  honor.' 

* Memorandum  presented  to  the  President  by  the  Russian  Ambassador: 

September  13,  1905. 

In  view  of  the  termination,  with  the  cordial  cooperation  of  the  Presi- 
dent of  the  United  States,  of  the  war  and  of  the  conclusion  of  peace  between 


94 


THE  HAGUE  PEACE  CONFERENCES 


Mr.  Root’s  memorandum  to  the  Russian  Ambassador,  dated 
October  12,  1905,  briefly  but  adequately  setting  forth  the  suc- 
cessive steps  by  which  the  Second  Conference  was  proposed  and 
the  transfer  of  the  initiative  to  Russia  may  well  conclude  the 
preliminaries  to  the  official  call  of  the  Conference : 

The  Secretary  of  State,  by  direction  of  the  President,  has 
the  honor  to  confirm  to  His  excellency  the  ambassador  of  Russia 
the  assurances  which  the  President  had  the  sincere  pleasure 
to  give  to  his  excellency  at  the  time  of  the  presentation  of  the 
memorandum  of  September  13.  The  President’s  circulars  to 
the  powers  parties  to  the  acts  of  The  Hague  Conference,  which 
the  late  Secretary  of  State  communicated  to  the  several  signa- 
tory states  through  the  American  envoys  accredited  thereto, 
dated,  respectively,  October  21  and  December  16  of  last  year, 
have  demonstrated  the  President’s  keen  desire  that  upon  a 
favorable  occasion  the  labors  of  the  First  International  Peace 
Conference  might  be  supplemented  and  completed  by  an  accord 
to  be  reached  by  a second  conference  of  the  powers.  The 
suggestion  so  put  forth  having  been  accepted  in  principle  by 
the  signatories,  it  only  remained  for  the  opportune  moment  to 
come  for  the  powers  to  agree  upon  the  place  and  time  for  their 
renewed  assemblage  in  order  to  perfect  the  beneficial  agreements 
of  the  first  conference. 

The  President  most  gladly  welcomes  the  offer  of  His  Im- 
perial Majesty  to  again  take  upon  himself  the  initiation  of 
the  steps  requisite  to  convene  a second  international  peace 
conference,  as  the  necessary  sequence  to  the  first  conference, 
brought  about  through  His  Majesty’s  efforts,  and  in  view  of 
the  cordial  responses  to  the  President’s  suggestion  of  October, 
1904,  he  doubts  not  that  the  project  will  meet  with  complete 

Russia  and  Japan,  His  Majesty  the  Emperor,  as  initiator  of  the  Inter- 
national Peace  Conference  of  1899,  holds  that  a favorable  moment  has 
now  come  for  the  further  development  and  for  the  systematizing  of  the 
labors  of  that  international  conference.  With  this  end  in  view,  and  being 
assured  in  advance  of  the  sympathy  of  President  Roosevelt,  who  has 
already  last  year  pronounced  himself  in  favor  of  such  a project.  His  Majesty 
desires  to  approach  him  with  a proposal  to  the  effect  that  the  Government 
of  the  United  States  take  part  in  a new  international  conference  which 
could  be  called  together  at  The  Hague  as  soon  as  favorable  replies  could 
be  secured  from  all  the  other  States  to  whom  a similar  proposal  will  be 
made.  As  the  late  war  has  given  rise  to  a number  of  questions  which  are 
of  the  greatest  importance  and  closely  related  to  the  acts  of  the  First  Con- 
ference, the  plenipotentiaries  of  Russia  at  the  future  meeting  will  lay  be- 
fore the  conference  a detailed  program  which  could  serve  as  a starting 
point  for  its  deliberations. — Foreign  Relations,  1905,  p.  829. 


GENEKAL  SUKVEY  OF  THE  SECOND  PEACE  CONFEKENCE  95 


acceptation  and  that  the  result  will  be  to  bring  the  nations  of 
the  earth  more  closely  together  in  their  common  endeavor  to 
advance  the  ends  of  peace. 

As  respects  the  further  statement  of  his  excellency’s  memo- 
randum of  September  13,  that,  as  the  late  war  has  given  rise 
to  a number  of  questions  which  are  of  the  greatest  importance 
and  closely  related  to  the  acts  of  the  first  conference,  the  pleni- 
potentiaries of  Russia,  at  the  future  meeting,  will  lay  before 
the  conference  a detailed  program  which  could  serve  as  a 
starting  point  for  its  deliberations,  the  President  finds  it  in 
consonance  with  the  indications  of  his  circular  of  October  21, 
1904,  touching  the  questions  to  come  before  a second  conference 
for  discussion,  and  the  importance  of  completing  the  work  of 
the  first  conference  by  ample  exchange  of  views  and,  it  is  to  be 
hoped,  full  concord  upon  the  broad  questions  specifically  rele- 
gated by  the  Final  Act  of  The  Hague  to  the  consideration  of  a 
future  conference.* 

2.  Invitation  to  Latin-America 

In  the  First  Commission  of  the  First  Conference,  M.  Beemaert 
finely  declared  that 

In  the  history  of  the  world,  this  is  the  first  time  I believe  that 
we  have  seen  representatives  of  almost  the  whole  of  the  civilized 
world  meet, — in  profound  peace,  without  a conflict  to  be  settled, 
or  without  wrongs  to  be  redressed,  without  any  preoccupation 
or  personal  advantage, — with  the  twofold  and  generous  mission 
to  perpetuate  harmony,  and  to  ameliorate  the  evils  of  war,  or 
to  regulate  it  for  the  day  in  which  it  can  not  be  avoided.^ 

It  will  be  remembered,  however,  that  the  First  Conference 
represented  only  a fraction  of  the  civilized  States  of  the  world 
acknowledging  and  applying  the  principles  of  international  law, 
and  that  Latin-America  was  unrepresented  in  the  conference,  un- 
less Mexico  be  regarded  as  its  representative.  ® The  U nited  States 


* Foreign  Relations,  1905,  pp.  29-30. 

* Conf4rence  Internationale de  laPaix,  1899,  part,  II,  First  Commission, 

p.  2. 

’ Brazil  seems  to  have  been  invited  to  the  First  Conference,  a fact  called  to 
the  attention  of  the  Second  Conference  by  M.  Ruy  Barbosa  in  the  expres- 
sions of  gratitude  to  the  Czar  for  initiating  the  Conference;  “La  D414ga- 
tion  de  Brasil  s’empresse  d’adh^rer  ^ cet  acte  de  gratitude  et  de  justice, 
d’autant  plus  volontiers  qu’il  r4pond,  en  meme  temps,  de  notre  part  k 


96 


THE  HAGUE  PEACE  CONFERENCES 


has  always  felt  a keen  interest  in  the  sister  republics  of  the  West- 
ern hemisphere,  and  from  the  establishment  of  their  independ- 
ence to  the  present  day,  it  has  sought  at  critical  times,  by  counsel 
and  good  offices,  to  protect  them  in  the  enjoyment  of  their 
just  rights.  The  Monroe  Doctrine,  made  the  subject  of  criticism, 
has  been  regarded,  in  many  quarters,  as  a manifesto  of  leader- 
ship in  American  affairs;  but  in  its  origin,  in  its  spirit,  and  in  its 
application,  it  has  sought  to  protect — never  to  subject — ^the 
American  republics.  The  United  States  has  entered  into  nu- 
merous treaties  with  Latin- America,  and  on  three  recent  histor- 
ical occasions  Pan-America  has  assembled  to  discuss  matters 
of  interest  common  to  the  Latin  as  well  as  to  the  Anglo-Saxon. 
The  Pan-American  Conference  held  in  Washington  in  1889-1890, 
due  to  the  wise  and  farseeing  statesmanship  of  Mr.  James  G. 
Blaine,^  the  Pan-American  Conference  held  in  Mexico  in  1901- 
1902,  the  third  conference  held  at  Rio  de  Janeiro  in  1906,  showed 
at  once  the  importance  and  the  solidarity  of  American  interests. 

The  United  States,  therefore,  was  unwilling  to  participate  in 
an  international  conference  at  The  Hague  which  did  not  include 
as  of  right  all  of  the  American  States;  and  inasmuch  as  the  Pan- 
American  Conference  was  in  session  at  Rio  de  Janeiro  in  the 
summer  of  1906,  the  United  States  insisted  that  The  Hague 
Conference  should  not  meet  at  a conflicting  period,  but  at 

une  dette  sp4ciale  de  reconnaissance  envers  le  Souverain  auquel  mon  pays 
a da  I’honneur  d’etre  invit4  ^ la  Premiere  Conf4rence  de  la  Paix.” — La 
Deuxieme  Conf4rence  Internationale  de  la  Paix,  1907,  Actes  et  Documents, 
vol.  1,  p.  171. 

Dr.  White  reports  the  substance  of  a conversation  with  a European 
colleague: 

“On  my  asking  why  Brazil,  though  represented  at  St.  Petersburg,  was 
not  invited,  he  answered  that  Brazil  was  invited,  but  showed  no  desire 
to  be  represented.  On  my  asking  him  if  he  supposed  this  was  because  other 
South  American  powers  were  not  invited,  he  said  that  he  thought  not; 
that  it  was  rather  its  own  indifference  and  carelessness,  arising  from  the 
present  unfortunate  state  of  government  in  that  coimtry.  On  my  saying 
that  the  Emperor  Dom  Pedro,  in  his  time,  would  have  taken  the  oppor- 
tunity to  send  a strong  delegation,  he  said:  ‘Yes;  he  certainly  would  have 
done  so.’  ’’ — Autobiography,  Vol.  II,  p.  284. 

‘For  Mr.  Blaine’s  note,  dated  November  29,  1881,  proposing  a Pan- 
American  Conference,  see  Appendix,  pp. 751-754. 


QENEEAL  SURVEY  OF  THE  SECOND  PEACE  CONFERENCE  97 


such  time  as  the  American  States  could  be  conveniently  repre- 
sented without  interfering  with  the  international  conference  of 
the  western  world.  And,  in  the  next  place,  the  United  States 
was  unwilling  that  the  two  conferences,  meeting  at  one  and  the 
same  time  or  approximately  at  one  and  the  same  time,  might 
seem  to  compete  in  importance,  or  that  the  meeting  of  one 
should  detract  in  interest  from  the  meeting  of  the  other.  As  is 
well  known  and  stated  in  the  Final  Act,  the  Conference  met 
at  The  Hague  on  the  fifteenth  day  of  June,  1907. 

But  it  was  not  only  essential  that  Latin-America  should  be 
represented  at  the  Conference,  but  also  that  Latin-America 
should  be  given  an  opportunity  to  adhere  to  the  conventions 
of  the  First  Conference:  otherwise,  the  powere  represented  at  the 
First  and  at  the  Second  Conference  would  not  stand  upon  that 
equality  which  is  the  essence  of  diplomatic  representation. 

Two  of  the  conventions,  namely,  the  convention  concerning 
the  laws  and  customs  of  war,  and  the  application  of  the  princi- 
ples of  the  Geneva  Convention  to  maritime  warfare,  were  open 
conventions;  that  is  to  say,  they  provided  in  express  terms  for 
the  subsequent  adherence  of  non-represented  States  which 
were  willing  to  accept  the  responsibilities  along  with  the  advan- 
tages of  the  conventions.  But  the  first  convention  for  the 
peaceful  adjustment  of  international  differences  is,  to  use  a 
technical  expression,  a “closed  convention;”  for  the  Signatories 
treated  it  as  a contract  binding  the  parties  to  it,  and  therefore, 
by  the  law  of  contracts,  of  no  effect  upon  those  who  were  not 
contracting  parties.  Accepting  the  contract  theoiy  as  correct, 
it  might  follow  that  A and  B were  willing  to  enter  into  con- 
tract with  C and  D,  but  they  might  be  unwilling  to  extend  the 
benefits  of  the  contract  to  X,  Y,  and  Z. 

Article  59  of  the  convention  stipulated  that  non-signato- 
ries might  adhere  to  it,  and  that  they  should  express  their  desire 
by  a written  notification  addressed  to  the  Dutch  Government, 
and  communicated  by  it  to  the  other  contracting  powers;  but 
as  some  of  these  latter  might  object  to  extending  the  benefits 
of  the  convention  to  the  non-signatories,  it  was  provided  in 
Article  60  that  the  conditions  of  adherence  to  the  preceding 


98 


THE  HAGUE  PEACE  CONFERENCES 


convention  should  form  the  object  of  a subsequent  agreement 
between  the  contracting  powers.  Through  the  good  offices  of 
the  United  States,  all  the  Latin-American  States  were  invited 
to  the  Conference,  and  through  the  initiative  of  the  United 
States,  the  formula  of  adherence  was  devised.  The  corre- 
spondence on  these  points  is  of  sufficient  interest  to  justify  its 
quotation.  In  a note,  dated  April  6,  1906,  to  Baron  Rosen, 
Russian  Ambassador  at  Washington,  Mr.  Root  said: 

I have  great  pleasure  in  acknowledging  the  receipt  of  your 
note  of  the  3d  instant  [April  3,  1906],  whereby  you  acquaint 
me  with  the  instructions  telegraphed  to  you  by  your  Govern- 
ment to  inform  the  Government  of  the  United  States  that,  in 
concert  with  the  Dutch  Government,  it  is  proposed  to  convoke 
the  Conference  of  The  Hague  during  the  first  half  of  the  month 
of  July  of  the  present  year 

It  behooves  me,  however,  to  say  that,  in  the  judgment  of 
the  President,  the  date  suggested  by  the  Imperial  and  the  Dutch 
Governments  for  the  assembling  of  the  Conference  would  be  in 
a high  degree  embarrassing  and  inconvenient,  not  only  to  the 
United  States  but  doubtless  also  to  many  other  nations  of  the 
American  hemisphere,  owing  to  the  fact  that  the  21st  of  July 
next  has  long  been  fixed  for  the  meeting  of  the  conference  of 
all  the  American  nations  at  Rio  de  Janeiro.  Furthermore, 
so  early  a date  as  the  first  half  of  July  does  not  appear  to  be 
conformable  to  the  understanding  arrived  at  in  respect  to 
the  Red  Cross  Congress  to  be  held  at  Geneva  in  mid- June, 
which  would  manifestly  not  have  an  opportunity  to  complete 
its  work  in  season  for  consideration  and  action  by  the  partici- 
pating governments  before  the  time  proposed  for  the  meeting  at 
The  Hague.  For  these  reasons,  as  well  as  for  other  practical 
considerations  in  regard  to  the  difficulty  that  would  beset  the 
several  governments  taking  part  in  these  three  important  con- 
ferences at  the  same  season,  both  as  to  their  representation 
thereat  and  as  to  the  need  of  preserving  a consistent  harmony 
in  the  discussion  of  the  allied  topics  which  would  necessarily 
come  before  the  three  conferences,  the  President  is  constrained 
to  say,  in  all  frankness,  that  so  early  a date  as  is  proposed  for 
the  meeting  of  the  Conference  of  The  Hague  appears  to  be  ex- 
tremely inexpedient;  and  that  he  would  be  obliged  to  say  so 
in  response  to  the  formal  joint  invitation  of  the  Imperial  and 
Dutch  Governments  which  is  foreshadowed  in  your  announce- 
ment of  their  intended  proposal.  As  your  note  merely  intimates 
the  proposal  of  those  two  Governments  to  act  in  concert  in  the 
indicated  sense,  it  is  assumed  that  the  present  purpose  of  the 


GENERAL  SURVEY  OF  THE  SECOND  PEACE  CONFERENCE  99 

Imperial  Government  is  to  invite  the  general  acquiescence  of 
the  interested  powers  in  the  contemplated  proposal  in  advance 
of  the  later  communication  of  the  formal  invitation;  hence  it 
is  proper  to  acquaint  the  Imperial  Government  with  the  views 
of  the  United  States  in  the  matter  of  the  date  to  be  agreed  upon. 

I take  note  of  the  further  statement  that  “Russia  at  the 
same  time  invites  the  nations  which  did  not  sign  the  convention 
relative  to  the  laws  of  war  on  land,  nor  that  relative  to  the 
adaptation  of  the  Geneva  Convention  to  war  at  sea,  to  inform 
the  Royal  Government  of  the  Netherlands  of  their  adhesion 
to  these  conventions.  With  regard  to  further  adhesions  to 
the  convention  concerning  international  arbitration,  the  Im- 
perial Government  is  conferring  on  this  subject  with  the  gov- 
ernments which  signed  the  acts  of  1899.” 

As  respects  the  latter  proposition,  the  President  has  already, 
in  the  circulars  of  the  Secretary  of  State  dated  October  21  and 
December  16,  1904,  advocated  the  extension  of  the  option  of 
adherence  to  powers  not  represented  at  the  conference  of  1899, 
and  he  will  welcome  the  suggested  comparison  of  views  looking 
to  the  conclusion  of  an  agreement  among  the  contracting  powers 
in  that  sense,  as  contemplated  by  Article  60  of  the  First  Hague 
Convention  of  29  July,  1899. 

The  United  States,  being  already  an  adhering  party  to  the 
conventions  mentioned,  would  gladly  see  other  nations,  not 
heretofore  signatories  or  adherents,  become  in  like  manner 
parties  to  the  beneficent  engagements  which  were  framed  by 
the  First  Conference  of  The  Hague  and  to  which  the  approach- 
ing second  conference  may  rightly  be  expected  to  give  wide 
scope  and  more  effective  application  in  the  light  of  recent  mil- 
itary developments  and  in  view  of  the  practical  needs  suggested 
by  experience.* 

The  Russian  Government  proposed,  in  its  note  of  April  12, 
1906,  that,  on  the  opening  of  the  Second  Conference,  the  repre- 
sentatives of  the  States,  parties  to  the  First  Conference,  sign 
the  following  protocol: 

The  representatives  at  the  Second  Peace  Conference  of 
the  states  signatories  of  the  Convention  of  1899  relative  to  the 
peaceful  settlement  of  international  disputes,  duly  authorized 
to  that  effect,  have  agreed  that  in  case  the  states  that  were  not 
represented  at  the  First  Peace  Conference,  but  have  been  con- 
voked to  the  present  conference,  should  notify  the  Government 
of  the  Netherlands  of  their  adhesion  to  the  above-mentioned 


‘ MS.  Records,  Department  of  State. 


100 


THE  HAGUE  PEACE  CONFERENCES 


convention  they  shall  be  forthwith  considered  as  having  acceded 
thereto.” 

In  reply,  Mr.  Root  hastened  to  say  that 

the  Government  of  the  United  States  cheerfully  gives  its  assent 
to  the  course  proposed  in  the  said  note  for  permitting  the 
adhesion  to  the  convention  for  the  pacific  settlement  of  inter- 
national disputes,  in  accordance  with  Article  60  of  that  con- 
vention, on  the  part  of  the  powers  which  did  not  take  part  in 
the  first  conference  at  The  Hague. 

It  is  the  understanding  of  the  United  States  that  should 
the  other  powers  who  took  part  in  that  conference  assent  to  the 
proposal  of  your  note  of  April  12,  that  assent  in  itself  will  have 
the  effect  of  making  it  certain  that  the  adhesion  of  the  powers 
which  did  not  take  part  in  the  first  conference  will  be  accepted, 
so  that  their  representatives  can  go  to  the  second  conference 
without  feeling  that  there  is  any  uncertainty  as  to  whether 
they  can  take  full  part  in  the  conference.' 

The  Latin-American  States  complied  with  the  formalities 
of  the  protocol  of  adherence;  the  protocol  of  adherence  was 
signed  at  The  Hague  on  June  14,  1907,  and  Latin- America 
became  entitled  to  admission  upon  a footing  of  absolute 
equality.  The  result  of  these  negotiations  meant,  in  simplest 
terms,  an  international  assembly  composed  not  merely  of  the 
select  few,  but  of  all  the  States*  at  the  present  time  accepting 
and  applying  in  their  international  relations  the  recognized 
principles  of  international  law.® 

‘ Mr.  Root’s  note,  dated  April  19,  1906,  to  Baron  Rosen ; MS.  records 
of  the  Department  of  State. 

^See  List  of  States  with  Comments,  Vol.  II,  pp.  179-180. 

® For  important  texts  concerning  the  admission  of  Latin- America  to 
the  Second  Hague  Peace  Conference,  the  protocol  consenting  to  the  adher- 
ence and  the  protocol  of  adherence,  see  Appendix,  pp.  758-770,  and  Vol. 
II,  pp.  252-255. 

The  records  of  the  Department  of  State  show  with  what  zeal  and  fidelity 
the  United  States  executed  the  mandate  to  secure  the  admission  of  Latin- 
America  to  the  privileges  of  the  convention  for  the  peaceful  settlement 
of  international  disputes.  The  documents  set  forth  in  the  text  and  in 
the  Appendix,  and  the  manuscript  records  of  the  Department  testify  to 
the  desire  of  the  United  States  to  secure  the  admission  of  the  American 
Republics  upon  a plane  of  equality  to  the  deliberations  of  the  Second 
Hague  Peace  Conference. 


GENERAL  SURVEY  OF  THE  SECOND  PEACE  CONFERENCE  101 

3.  The  Program  and  Reservations  of  Certain  Powers 

It  is  now  necessary  to  consider  another  preliminary  of 
great  importance,  namely,  the  program  to  be  presented  to  the 
Conference,  which  should  form  the  basis  of  discussion  and 
eventual  agreement. 

In  the  circular  letter  of  October  21, 1904,  the  United  States 
indicated  that 

it  would  seem  premature  to  couple  the  tentative  invitation 
thus  extended  with  a categorical  program  of  subjects  of  dis- 
cussion. It  is  only  by  comparison  of  views  that  general  accord 
can  be  reached  as  to  matters  to  be  considered  by  the  new  con- 
ference  Among  the  broader  general  questions 

affecting  the  right  and  justice  of  the  relation  of  sovereign  states, 
which  were  then  relegated  to  a future  conference,  were:  the 
rights  and  duties  of  neutrals,  the  inviolability  of  private  prop- 
erty in  naval  warfare;  and  the  bombardment  of  ports,  towns, 
and  villages  by  naval  force.  The  other  matter  mentioned 
in  the  Final  Act  take  the  form  of  suggestions  for  considerj.tion 
by  interested  governments.* 

In  the  circular  note  of  December  16, 1904,  the  United  States 
again  declared  that 

“the  invitation  put  forth  by  the  Government  of  the  United 
States  did  not  attempt  to  do  more  than  indicate  the  general 
topics  which  the  Final  Act  of  the  first  conference  at  The 
Hague  relegated,  as  unfinished  matters,  to  consideration  by 

a future  conference In  the  present  state  of  the 

project,  this  Government  is  still  indisposed  to  formulate  a 
program,”  and  “that  it  should  not  assume  the  initiative  in 
drawing  up  a program,  nor  preside  over  the  deliberations  of 
the  signatories  in  that  regard.”* 

The  attitude  of  the  United  States  was  that  the  program 
presented  should  be  the  result  of  conference  and  discussion, 
and  that  it  should  represent  the  agreement  of  all  powers, 
rather  than  the  suggestion  or  dictation  of  any  one  power.  In 
a note  dated  April  3, 1906,  the  Russian  Government  submitted 
a tentative  program,  in  acknowledging  which,  on  April  6, 
Secretary  Root  reserved  consideration  of  the  subjects  sub- 
mitted, “with  liberty  to  advance  other  proposals  of  an  allied 

* Vol.  II,  pp.  170-171. 

*Ibid.,  pp.  173-174. 


102 


THE  HAGUE  PEACE  CONFERENCES 


character,  should  its  own  needs  and  experience  counsel  such  a 
course.”  A few  days  later,  on  April  12,  1906,  the  Russian 
Ambassador,  Baron  Rosen,  presented  an  elaborate,  and,  as  it 
proved,  definitive  program: 

1.  Improvements  to  be  made  in  the  provisions  of  the  con- 
vention relative  to  the  peaceful  settlement  of  international 
disputes  as  regards  the  Court  of  Arbitration  and  the  inter- 
national commissions  of  inquiry. 

2.  Additions  to  be  made  to  the  provisions  of  the  convention 
of  1899  relative  to  the  laws  and  customs  of  war  on  land — among 
others,  those  concerning  the  opening  of  hostilities,  the  rights 
of  neutrals  on  land,  etc.  Declarations  of  1899.  One  of  these 
having  expired,  question  of  its  being  revived. 

3.  Framing  of  a convention  relative  to  the  laws  and  cus- 
toms of  maritime  warfare,  concerning — 

The  special  operations  of  maritime  warfare,  such  as  the 
bombardment  of  ports,  cities  and  villages  by  a naval  force;  the 
laying  of  torpedoes,  etc. 

The  transformation  of  merchant  vessels  into  warships. 

The  private  property  of  belligerents  at  sea. 

The  length  of  time  to  be  granted  to  merchant  ships  for  their 
departure  from  ports  of  neutrals  or  of  the  enemy  after  the  open- 
ing of  hostilities. 

The  rights  and  duties  of  neutrals  at  sea — among  others  the 
questions  of  contraband,  the  rules  applicable  to  belligerent 
vessels  in  neutral  ports;  destruction,  in  cases  of  vis  major,  of 
neutral  merchant  vessels  captured  as  prizes. 

In  the  said  convention  to  be  drafted,  there  would  be  intro- 
duced the  provisions  relative  to  war  on  land  that  would  be 
also  applicable  to  maritime  warfare. 

4.  Additions  to  be  made  to  the  convention  of  1899  for  the 
adaptation  to  maritime  warfare  of  the  principles  of  the  Geneva 
Convention  of  1864. 

As  was  the  case  at  the  Conference  of  1899,  it  would  be  well 
understood  that  the  deliberations  of  the  contemplated  meeting 
should  not  deal  with  the  political  relations  of  the  several  states, 
or  the  condition  of  things  established  by  treaties,  or  in  general 
with  questions  that  did  not  directly  come  within  the  program 
adopted  by  the  several  cabinets.^ 

In  reply  to  the  Russian  note  of  April  12,  1906,  the  Secretary 
of  State,  while  approving  the  program,  as  presented,  exercised 
the  liberty  reserved  in  the  note  of  April  6,  by  suggesting  two 

'For  text  of  the  note,  see  Vol.  II,  pp.  175-177. 

MS.  records  of  the  Department  of  State. 


GENERAL  SURVEY  OF  THE  SECOND  PEACE  CONFERENCE  103 

further  topics  for  discussion,  namely,  the  limitation  of  arma- 
ments and  the  restriction  of  force  in  the  collection  of  contract 
debts.  The  intrinsic  importance  of  these  reservations  requires 
quotation  of  the  material  portions  of  Mr.  Root’s  note  of  June 
7,  1906: 

The  Government  of  the  United  States  is,  however,  so  deeply 
in  sympathy  with  the  noble  and  humanitarian  views  which 
moved  His  Imperial  Majesty  to  the  calling  of  the  First  Peace 
Conference  that  it  would  greatly  regret  to  see  those  views 
excluded  from  the  consideration  of  the  Second  Conference. 

In  the  memorandum  of  August  12,  1898,  which  accompanied 
the  call  for  that  conference.  Count  Mouravieff,  expressing  the 
sentiment  of  His  Majesty  the  Emperor,  said: 

“The  maintenance  of  general  peace  and  a possible  reduction 
of  the  excessive  armaments  which  weigh  down  upon  all  nations 
present  themselves,  in  the  actual  present  situation  of  the  world, 
as  the  ideal  toward  which  should  tend  the  efforts  of  all  gov- 
ernments  

“This  conference  will  be,  with  the  help  of  God,  a happy 
augury  for  the  century  which  is  about  to  open.  It  will  gather 
together  in  a powerful  unit  the  efforts  of  all  the  powers  which 
are  sincerely  desirous  of  making  triumphant  the  conception  of 
a universal  peace.  It  will,  at  the  same  time,  strengthen  their 
mutual  harmony  by  a common  consideration  of  the  principle 
of  equity  and  right,  upon  which  rest  the  security  of  states  and 
the  well-being  of  nations.” 

The  truth  and  value  of  the  sentiments  thus  expressed  are 
surely  independent  of  the  special  conditions  and  obstacles  to 
their  realization  by  which  they  may  be  confronted  at  any  par- 
ticular time.  It  is  true  that  the  First  Conference  at  The  Hague 
did  not  find  it  practicable  to  give  them  effect,  but  long-continued 
and  patient  effort  has  always  been  found  necessary  to  bring 
mankind  into  conformity  with  great  ideals.  It  would  be  a 
misfortune  if  that  effort,  so  happily  and  magnanimously  inau- 
gurated by  His  Imperial  Majesty,  were  to  be  abandoned. 

This  Government  is  not  unmindful  of  the  fact  that  the 
people  of  the  United  States  dwell  in  comparative  security, 
partly  by  reason  of  their  isolation  and  partly  because  they 
have  never  become  involved  in  the  numerous  questions  to 
which  many  centuries  of  close  neighborhood  have  given  rise 
in  Europe.  They  are,  therefore,  free  from  the  apprehensions 
of  attack  which  are  to  so  great  an  extent  the  cause  of  great 
armaments,  and  it  would  ill  become  them  to  be  insistent  or 
forward  in  a matter  so  much  more  vital  to  the  nations  of  Europe 
than  to  them.  Nevertheless,  it  sometimes  happens  that  the 
very  absence  of  a special  interest  in  a subject  enables  a nation 


104 


THE  HAGUE  PEACE  CONFERENCES 


to  make  suggestions  and  urge  considerations  which  a more 
deeply  interested  nation  might  hesitate  to  present.  The  Gov- 
ernment of  the  United  States,  therefore,  feels  it  to  be  its  duty 
to  reserve  for  itself  the  liberty  to  propose  to  the  Second  Peace 
Conference,  as  one  of  the  subjects  of  consideration,  the  reduction 
or  limitation  of  armaments,  in  the  hope  that,  if  nothing  further 
can  be  accomplished,  some  slight  advance  may  be  made  toward 
the  realization  of  the  lofty  conception  which  actuated  the  Em- 
peror of  Russia  in  calling  the  First  Conference. 

There  is  one  other  subject  which  it  seems  to  the  Government 
of  the  United  States  might  well  engage  the  attention  of  the 
conference.  The  subjects  already  proposed  relate  chiefly  to 
lessening  the  evils  and  reducing  the  barbarity  of  war.  Impor- 
tant as  this  is,  war  will  still  be  cruel  and  barbarous,  and  the 
thing  most  important  is  to  narrow  the  cause  of  war  and  reduce 
its  frequency.  It  seems  doubtful,  in  view  of  the  numerous 
reservations  which  accompanied  the  signatures  of  the  powers 
to  the  very  moderate  provisions  of  the  convention  for  inter- 
national arbitration  agreed  upon  at  the  First  Conference, 
whether  it  will  be  practicable  to  secure  any  very  general  assent 
to  an  agreement  for  compulsory  arbitration  without  such  ex- 
tensive exceptions  as  to  do  away  in  great  measure  with  its 
compulsory  effect.  It  does  not  follow,  however,  that  there  may 
not  be  agreement  upon  the  rules  of  conduct  which  ought  to  be 
followed  in  particular  cases  out  of  which  controversy  is  liable 
to  arise;  or  that  these  rules,  if  observed,  may  not  greatly  decrease 
the  probabilities  of  war.  The  United  States  feels  that  it  would 
be  well  worth  while  for  the  powers  assembled  at  the  Peace  Con- 
ference to  consider  whether  such  an  effect  could  not  be  produced 
by  an  agreement  to  observe  some  limitations  upon  the  use  of 
force  for  the  collection  of  ordinary  public  debts  arising  out  of 
contracts.  The  United  States,  accordingly,  reserves  to  itself 
the  liberty  to  propose  this  further  subject  for  the  consideration 
of  the  conference.  ‘ 

In  a memorandum  presented  to  the  Secretary  of  State, 
November  12,  1906,  the  Russian  Ambassador  said  that  if  the 
United  States  insisted  that  these  two  subjects,  mentioned  in 
the  note  of  June  7,  figure  in  the  program, 

it  would  become  necessary  to  previously  consult  the  views 
of  the  powers  who  have  already  approved  the  program  as  pro- 
posed by  Russia,  as  well  as  those  powers  who  have  not  yet 
indicated  their  views  upon  the  subject. 

The  Ambassador  stated  in  no  uncertain  terms  that  the  re- 
fusal of  one  of  the  great  powers  to  discuss  these  questions  would 

‘ MS.  records  of  the  Department  of  State. 


GENERAL  SURVEY  OF  THE  SECOND  PEACE  CONFERENCE  105 


render  the  assembling  of  the  Conference  “extremely  difficult.” 
The  Secretary  of  State,  however,  deemed  the  matter  of  great 
importance,  and  in  a note  to  the  Russian  Ambassador,  dated 
March  26, 1907,  he  said ; 

I beg  that  you  will  ask  your  Government  to  include  in  their 
letter  of  invitation  a statement  of  the  fact  of  the  right  of  the 
Government  of  the  United  States  to  propose  the  matter  stated 
in  the  reservations  made  in  my  note  to  you  on  June  7,  1906, 
namely,  the  reduction  or  limitation  of  armaments,  and  the  attain- 
ment of  an  agreement  to  observe  some  limitations  on  the  use 
of  force  for  the  collection  of  ordinary  public  debts  arising  out 
of  contracts. 

It  would  seem  that  the  Secretary  of  State  was  not  alone  in 
his  desire  to  see  subjects  of  vital  interest  discussed  by  the  Con- 
ference, and  that  various  powers  were  equally  unwilling  to 
submit  to  a program  which  limited,  without  their  consent, 
the  discussion  of  subjects  not  included  in  the  Russian  program. 
Mr.  Root’s  request  that  the  subjects  mentioned  in  his  reserva- 
tion of  June  7,  1906,  be  communicated  to  the  powers  invited, 
was  complied  with  as  appears  from  the  note  of  the  Russian 
Ambassador,  dated  March  22/April  4,  1907,  which  shows  the 
views  of  the  participating  powers  on  the  eve  of  the  convoca- 
tion: 

The  undersigned.  Ambassador  of  Russia,  by  order  of  his 
Government,  has  the  honor  to  make  the  following  communi- 
cation to  His  Excellency  the  Secretary  of  State  of  the  United 
States: 

Before  the  Second  Peace  Conference  is  called,  the  Imperial 
Government  deems  it  an  obligation  to  submit  to  the  Powers 
which  have  accepted  its  invitation  a statement  of  the  present 
situation. 

All  the  Powers  to  which  the  Imperial  Government  com- 
municated in  April,  1906,  its  tentative  program  of  the  labors 
of  the  new  Conference  have  declared  their  adhesion  thereto. 

However,  the  following  remarks  have  been  made  with 
respect  to  that  program; 

The  Government  of  the  United  States  has  reserved  to  itself 
the  liberty  of  submitting  to  the  Second  Conference  two  addi- 
tional questions,  viz:  the  reduction  or  limitation  of  armaments 


106 


THE  HAGUE  PEACE  CONFERENCES 


and  the  attainment  of  an  agreement  to  observe  some  limitations 
upon  the  use  of  force  for  the  collection  of  ordinary  public  debts 
arising  out  of  contracts. 

The  Spanish  Government  has  expressed  a desire  to  discuss 
the  limitation  of  armaments,  reserving  to  itself  the  right  to 
deal  with  this  question  at  the  next  meeting  at  The  Hague. 

The  British  Government  has  given  notice  that  it  attaches 
great  importance  to  having  the  question  of  expenditures  for 
armament  discussed  at  the  Conference,  and  has  reserved  to 
itself  the  right  of  raising  it.  It  has  also  reserved  to  itself  the 
right  of  taking  no  part  in  the  discussion  of  any  question  men- 
tioned in  the  Russian  program  which  would  appear  to  it  unlikely 
to  produce  any  useful  result. 

Japan  is  of  opinion  that  certain  questions  that  are  not 
especially  enumerated  in  the  program  might  be  conveniently 
included  among  the  subjects  for  consideration,  and  reserves 
to  itself  the  right  to  take  no  part  in  or  withdraw  from  any  dis- 
cussion taking  or  tending  to  take  a trend  which,  in  its  judg- 
ment, would  not  be  conducive  to  any  useful  result. 

The  Governments  of  Bolivia,  Denmark,  Greece,  and  the 
Netherlands  have  also  reserved  to  themselves,  in  a general  way, 
the  right  to  submit  to  the  consideration  of  the  Conference  other 
subjects  similar  to  those  that  are  explicitly  mentioned  in  the 
Russian  program. 

The  Imperial  Government  deems  it  its  duty  to  declare, 
for  its  part,  that  it  maintains  its  program  of  the  month  of  April, 
1906,  as  the  basis  for  the  deliberations  of  the  Conference,  and 
that  if  the  Conference  should  broach  a discussion  that  would 
appear  to  it  unlikely  to  end  in  any  practical  issue  it  reserves 
to  itself,  in  its  turn,  the  right  to  take  no  part  in  such  a discus- 
sion. 

Remarks  similar  to  this  last  have  been  made  by  the  German 
and  Austro-Hungarian  Governments,  which  have  likewise  re- 
served to  themselves  the  right  to  take  no  part  in  the  discus- 
sion by  the  Conference  of  any  question  which  would  appear 
unlikely  to  end  in  any  practical  issue. 

In  bringing  these  reservations  to  the  knowledge  of  the  Pow- 
ers and  with  the  hope  that  the  labors  of  the  second  Peace  Con- 
ference will  create  new  guaranties  for  the  good  understanding 
of  the  nations  of  the  civilized  world,  the  Imperial  Government 
has  addressed  to  the  government  of  the  Netherlands  a request 
that  it  may  be  pleased  to  call  the  Conference  for  the  first  days 
of  .Tune.' 

The  invitation  referred  to  in  the  Russian  note,  convening 
the  Peace  Conference  at  The  Hague  on  the  fifteenth  day  of 
June,  1907,  was  duly  received  and  accepted  by  the  United  States. 

'MS.  Records,  Department  of  State. 


GENERAL  SURVEY  OF  THE  SECOND  PEACE  CONFERENCE  107 


4.  Opening  of  the  Second  Conference 

On  Saturday  afternoon,  June  15,  1907,  at  3 o’clock,  the 
members  of  the  Second  Peace  Conference  at  The  Hague 
assembled  in  The  Binnenhof  in  the  Hall  of  Knights,  and 
were  called  to  order  by  the  Dutch  Minister  of  Foreign  Affairs, 
M.  Van  Tets  van  Goudriaan,  who  delivered  an  address  of 
welcome. 

The  minister,  in  the  name  of  the  Queen,  wished  the  delegates 
to  the  conference  welcome  and  offered  to  them  the  hospi- 
tality of  The  Hague.  He  expressed  gratitude  toward  the 
initiator  of  the  Conference  and  toward  the  President  of  the 
United  States,  who,  he  said,  was  largely  instrumental  in  har- 
vesting the  seed  sown  in  1899.  Touching  upon  the  severe 
criticism  of  the  results  of  the  labors  of  the  First  Peace  Confer- 
ence, he  said : 

These  judgments,  and  the  events  which  have  occurred,  and 
which  according  to  some  pessimistic  minds,  have  furnished  a 
proof  of  the  fruitlessness  of  the  efforts  of  this  Conference,  have 
not  seriously  weakened  the  current  of  opinion  which  had  been 
formed  in  favor  of  the  work  of  the  Assembly  of  1899. 

The  best  proof  that  the  peoples  and  their  governments, 
far  from  disregarding  this  current  of  opinion,  have  been  influ- 
enced by  it,  seems  to  me  to  be  the  readiness  with  which  the 
Powers  have  responded  to  the  appeal  addressed  to  them. 

This  reception,  he  said,  which  was  practically  unanimously 
favorable,  was  a good  omen  for  the  success  of  the  Conference, 
as  was  also  the  increase  in  the  number  of  nations  represented, 
“ for  the  greater  the  number  of  nations  participating  in  the  Con- 
ference, the  more  certain  the  general  and  unqestioned  observ- 
ance of  the  measures  adopted  by  them.”  He  explained  that 
the  House  in  the  Woods,  where  the  delegates  held  their  meet- 
ings in  1899,  was  not  large  enough  to  accommodate  so  numer- 
ous a gathering,  but  stated  that  the  Hall  of  Knights,  built 
in  the  thirteenth  century  by  William  II,  Count  of  Holland, 
King  of  the  Romans,  and  at  present  used  by  the  States-General 
in  joint  session,  seemed  worthy  of  receiving  the  Second  Peace 
Conference.  Minister  van  Tets  then  proposed  a telegram  to 


108 


THE  HAGUE  PEACE  CONFERENCES 


the  Emperor  of  Russia  expressing  the  gratitude  of  the  Con- 
ference for  continuing  the  work  begun  in  1899  and  assuring 
him  of  its  earnest  desire  to  fulfil  the  task  entrusted  to  it. 
Unanimous  consent  was  given  to  his  proposition.  Finally, 
the  minister  proposed,  as  did  his  predecessor  of  1899,  M.  de 
Beaufort,  that  the  first  delegate  of  Russia  be  selected  chair- 
man of  the  Conference,  and  with  unanimous  assent,  for  there 
was  no  nomination  or  election  in  the  Anglo-American  sense  of 
the  term,  M.  de  Nelidow  assumed  the  chair.  ‘ 

M.  de  Nelidow,  after  thanking  the  delegates  for  the  honor 
of  the  presidency,  proposed  that  M.  van  Tetsvan  Goudriaan  be 
elected  honorary  president,  and  M.  de  Beaufort,  first  delegate 
of  the  Netherlands,  Vice-President,  and  that  a telegram  be 
sent  to  the  Queen  of  the  Netherlands  expressing  the  gratitude 
of  the  representatives  of  the  forty-five  nations  assembled  for 
their  gracious  reception  at  the  Hague.  These  propositions 
were  unanimously  agreed  to,  and  unanimous  approval  was 
also  given  to  his  remarks  concerning  the  credit  due  for  the  con- 
vocation of  the  Conference  to  the  “ eminent  chief  executive  of 
the  great  North  American  federation,  whose  generous  impulses 
are  always  inspired  by  the  most  noble  sentiments  of  justice 
and  humanity.”  M.  de  Nelidow  said  that  this  was  the  first 
time  that  the  representatives  of  almost  all  organized  nations 
were  gathered  in  a single  assembly  to  discuss  in  common 
“the  dearest  interests  of  humanity,  namely,  those  of  concilia- 
tion and  justice,”  and  he  expressed  the  “hope  that  the  same 
sentiments  of  concord  which  animated  the  governments  will 
prevail  likewise  among  their  representatives  and  contribute 
thus  to  the  success  of  the  task  devolving  upon  us.” 

This  task,  gentlemen,  as  outlined  in  the  program  of  the 
Conference  and  accepted  by  all  the  governments,  is  composed 
of  two  parts.  On  the  one  hand,  we  are  to  seek  the  means  of 
settling  in  a friendly  manner  any  differences  which  may  arise 
among  the  nations,  and  of  thus  preventing  ruptures  and  armed 
conflicts.  On  the  other  hand,  we  must  endeavor,  if  war  has 

‘For  the  text  of  the  address,  see  La  Deuxifime  Conference  Interna- 
tionale de  la  Paix,  1907,  Actes  et  Documents,  Vol.  I,  pp.  48-49. 


GENERAL  SURVEY  OF  THE  SECOND  PEACE  CONFERENCE  109 


broken  out,  to  mitigate  its  burdens  both  for  the  combatants 
themselves,  and  for  those  who  may  be  indirectly  affected. 
These  two  problems  may  have  appeared  sometimes  to  be  in- 
compatible. When,  during  the  war  of  secession  in  the  United 
States,  a professor,  Dr.  Lieber,  I believe,  had  prepared  a 
draft  of  instructions  for  the  commanders  of  troops  occupying 
a hostile  territory  and  for  the  local  authorities  of  the  occupied 
territory,  for  the  purpose  of  alleviating  for  both  of  them  the 
difficulties  and  burdens  of  this  abnormal  situation,  I heard  the 
opinion  expressed  that  it  was  absolutely  wrong  to  seek  to 
mitigate  the  horrors  of  war.  “ In  order  that  wars  may  be  short 
and  rare,”  I was  told,  “the  peoples  waging  it  must  feel  its  full 
weight  so  that  they  will  seek  to  put  an  end  to  it  as  soon  as 
possible  and  not  desire  to  resume  it.”  This  idea,  gentlemen, 
seems  absolutely  fallacious  to  me.  The  horrors  of  the  struggles 
of  ancient  times  and  of  the  wars  of  the  Middle  Ages  did  not 
diminish  either  their  duration  or  their  frequency,  whereas  the 
mitigations  introduced  during  the  second  half  of  the  last  cen- 
tury into  the  methods  of  warfare  and  the  treatment  of  prisoners 
and  wounded,  as  well  as  the  whole  series  of  humanitarian 
measures  which  have  done  honor  to  the  First  Peace  Conference, 
and  which  are  to  be  amplified  by  the  labors  of  the  Conference 
we  are  opening,  have  by  no  means  contributed  toward  develop- 
ing a taste  for  war.  They  have,  on  the  contrary,  disseminated 
a sentiment  of  international  comity  throughout  the  civilized 
world,  and  created  a peaceful  current  which  is  revealed  in  the 
manifestation  of  approval  with  which  public  opinion  receives 
and,  as  I hope,  will  continue  to  receive  our  labors.  We  shall, 
therefore,  have  to  persevere  in  this  regard  in  the  path  opened 
by  our  predecessors  in  1899. 

As  regards  the  other  part  of  our  task,  that  relating  to  the 
means  of  preventing  and  avoiding  conflicts  among  nations, 
it  seems  useless  to  dwell  on  the  services  which  have  already 
been  rendered  to  the  cause  of  peace  and  right  by  the  institutions 
created  and  the  measures  adopted  by  the  First  Conference.  The 
opinion  has  been  expressed  that  the  differences  settled  after  the 
First  Conference  of  The  Hague  did  not  exceed  in  importance  what 
might  be  called  international  justice-of-the-peace  cases.  Well, 
Gentlemen,  even  justices  of  the  peace  render  valuable  services 
to  public  order  and  tranquillity.  They  settle  private  quarrels 
amicably  and  contribute  toward  the  maintenance  of  an  atmos- 
phere of  calm  among  individuals  by  removing  petty  causes  of 
irritation,  which,  by  accumulating,  often  produce  great  hos- 
tilities. It  is  the  same  way  among  nations.  It  is  by  prevent- 
ing minor  disturbances  in  their  relations  that  we  prepare  the 
ground  for  understandings  when  greater  interests  are  at  stake. 
The  solemn  recognition  of  the  principle  of  arbitration  has  already 
created  a disposition  among  the  various  nations  to  resort  to  it 


110 


THE  HAGUE  PEACE  CONFERENCES 


for  the  settlement  of  disputes  in  a field  the  limits  of  which  are 
being  incessantly  extended.  Thus,  since  1899,  thirty-three 
arbitration  conventions  have  been  concluded  among  the  various 
nations.  Moreover,  four  great  and  complicated  cases,  capable 
of  creating  irritation  among  the  Powers,  have  been  taken  be- 
fore the  Arbitration  Court  at  The  Hague,  and  the  Commission 
of  Inquiry  created  by  the  Act  of  1899  had,  as  everybody  remem- 
bers, to  concern  itself  with  an  exceedingly  serious  case  which, 
had  it  not  been  for  its  intervention,  might  have  had  the  most 
dangerous  consequences. 

Later  on  he  cautioned  the  Conference  not  to  be  too  ambi- 
tious. 

Let  us  not  forget  that  our  means  of  action  are  limited,  that 
nations  are  living  beings  just  like  the  individuals  composing 
them;  that  they  have  the  same  passions,  the  same  aspirations, 
the  same  failings  and  the  same  impulses.  Let  us  not  forget 
that,  if  in  everyday  life  the  judicial  organs,  in  spite  of  the 
severity  of  the  punishments  which  they  are  authorized  to  mete 
out,  do  not  succeed  in  preventing  quarrels  and  acts  of  violence 
among  individuals,  it  will  be  the  same  among  nations,  although 
the  progress  of  conciliation  and  the  progressive  softening  of 
manners  must  certainly  diminish  these  cases.  Let  us  above 
all  not  forget,  gentlemen,  that  there  is  a whole  series  of  cases 
in  which  honor,  dignity  and  vital  interests  are  involved  in  the 
case  of  individuals  as  well  as  of  nations,  and  in  which  neither 
one  nor  the  other  will  ever  recognize  any  other  authority  than 
that  of  their  own  judgment  and  their  personal  feelings  regardless 
of  consequences. 

However,  let  us  not  allow  this  to  discourage  us  from  dream- 
ing of  a universal  peace  and  fraternity  among  peoples  .... 
Let  us  therefore  go  bravely  to  work,  having  the  luminous  star 
of  peace  and  universal  justice  to  light  our  way,  and  although 
we  shall  never  reach  it,  it  will  nevertheless  always  guide  us 
toward  the  welfare  of  humanity.' 

It  would  be  unfair  to  say  that  the  address  of  M.  deNelidow 
fell  flat.  It  is,  however,  a fact  that  it  aroused  no  enthusiasm. 
His  manner  was  correct  and  dignified,  as  becomes  the  diplomat, 
but  in  his  appearance,  in  his  voice,  and  in  his  occasional  ges- 
tures, there  was  an  apparent  lack  of  sympathy  with  the  pur- 


’ For  the  text  of  M.  de  Nelidow’s  address,  see  La  Deuxi^me  Conference 
Internationale  de  la  paix,  1907,  Antes  et  Documents,  Vol.  I,  pp.  49-52. 


GENERAL  SURVEY  OP  THE  SECOND  PEACE  CONFERENCE  111 


pose  of  the  Conference  and  its  surroundings,  for  which  lack, 
no  amount  of  diplomatic  propriety  could  make  up. 

The  opening  addresses  show  strict  compliance  with  the 
proprieties  of  the  occasion.  The  Dutch  Minister  of  Foreign 
Affairs  proposed  that  its  respectful  homages  belaid  “at the 
feet”  of  His  Russian  Majesty,  and  M.  de  Nelidow  likewise 
proposed  that  the  grateful  acknowledgment  for  a gracious 
reception  be  laid  at  the  feet  of  Her  Dutch  Majesty.  Their 
Majesties  were  duly  edified  by  these  evidences  of  homage  and 
devotion,  as  was  indicated  by  the  telegrams  which  each 
“deigned”  to  send  to  the  Conference.  It  is  interesting  to 
note,  in  this  connection,  that  no  telegram  was  sent  to  Presi- 
dent Roosevelt,  the  real  initiator  of  the  Conference.  This  is, 
of  course,  a small  matter,  attributable  either  to  a desire  to  keep 
the  Conference  within  the  family,  so  to  speak,  or  to  indiffer- 
ence of  the  proprieties  where  imperial  and  royal  personages 
are  not  involved.  Before  the  close  of  the  Conference,  it  became 
abundantly  clear  that  a blunder  had  been  made  in  not  tele- 
graphing President  Roosevelt,  and  at  the  last  session,  tardy 
reparation  was  made  by  the  following  telegram; 

At  the  termination  of  its  labors,  the  delegates  to  the  Second 
Conference  of  Peace  recall  with  gratitude  the  initial  proposition 
made  for  its  convocation  by  the  President  of  the  United  States, 
and  present  to  him  their  respectful  homages.^ 

Had  a telegram  been  sent  at  the  beginning,  instead  of  at  the 
end  of  its  labors,  the  Conference  would  have  received  a ringing 

* To  this  telegram  under  date  of  October  24,  1907,  Mr.  Root  replied  as 
follows : 

"I  have  the  honor  to  advise  Your  Excellency  that  the  President  has 
received  the  telegram  of  the  18th  instant  by  which  you  informed  him  that 
the  delegates  to  the  Second  Peace  Conference  remembered  with  gratitude 
the  initial  proposition  which  was  made  by  the  President  for  the  convoca- 
tion of  the  Conference,  and  having  completed  their  labors,  wished  to 
present  to  him  their  respectful  homage. 

“I  am  charged  by  the  President  to  express  to  you  and  to  the  delegates 
to  the  Conference  his  high  appreciation  of  your  courteous  message  and  his 
sense  of  the  honor  conveyed  by  it,  and  to  offer  to  the  delegates  his  congratu- 
lations upon  the  beneficent  results  of  their  deliberations.” — La  Deuxieme 
Conference  Internationale  de  la  Paix,  1907,  Actes  et  Documents,  Vol.  I, 
p.  602. 


112 


THE  HAGUE  PEACE  CONFERENCES 


message  from  our  President,  which  might  have  dispelled  the 
gloom  of  the  first  days  and  counted  for  much  in  the  work  of 
the  Conference  itself. 

In  brief,  but  it  is  hoped,  in  sufificient  detail,  I have  men- 
tioned the  successive  steps  by  which  the  conference  was  called, 
the  States  invited,  and  the  manner  in  which  this  was  de- 
termined, the  program  of  the  Conference,  with  the  rights 
reserved  by  various  delegations  to  bring  to  discussion  other 
subjects  of  international  importance;  the  opening  of  the  Con- 
ference itself,  and  the  proceedings  of  a purely  formal  or  per- 
functory character.  The  Conference,  however,  required  to  be 
organized  and  subdivided,  because  it  was  an  unwieldy  body, 
fitted  to  approve  but  not  to  discuss  in  detail  technicalities. 
Then,  too,  a code  or  rules  of  procedure  should  be  adopted  for 
the  guidance  of  the  Conference,  and  an  efficient  secretariat 
organized,  without  which,  division  into  committees  and  rules 
of  procedure  would  be  of  little  value. 

5.  Procedure  of  Conference 

In  the  matter  of  procedure,  the  president  proposed  to 
follow  the  method  employed  by  the  Conference  of  1899,  adapt- 
ing it  to  new  conditions.  The  assembly  being,  as  he  said,  very 
numerous,  it  seemed  useful — he  might  have  added  necessary — 
for  the  regulation  of  its  labors,  to  frame  a code  of  rules.  He 
thereupon  introduced  a project,  or  r^glement,  consisting  of 
twelve  rules,  which  was  adopted  in  its  entirety,  with  the 
exception  of  the  last  paragraph  of  Article  8.^  The  clause 
in  question  provided  that  the  delegation  of  a power  may  be 
represented  by  the  delegation  of  another  power,  to  which  the 
British  delegate.  Sir  Edward  Fry,  objected,  for  the  very 
sound  reason  that  the  Conference  is  a deliberative  assembly, 
and  consequently  a delegation  which  has  not  taken  part  in  the 
deliberations  should  not  vote.  This  view  was  shared  by  Baron 
Marschall  von  Bieberstein  and  M.  Bourgeois,  and  the  Confer- 
ence rejected  the  objectionable  clause. 

‘ For  the  text  of  the  Reglement,  see  Appendix,  pp.  770-772. 


GENERAL  SURVEY  OF  THE  SECOND  PEACE  CONFERENCE  113 


Article  1 provided  that  the  Conference  be  composed  of 
plenipotentiaries  and  technical  delegates,  and  Article  3 like- 
wise speaks  of  these  two  classes.  The  distinction  is  one  not 
merely  of  dignity,  but  of  essence.  The  plenipotentiary  is  a 
political  or  diplomatic  agent  of  his  Government  and  binds  it 
to  the  extent  of  the  power  entrusted  to  him.  The  technical 
delegate,  on  the  other  hand,  is  an  expert  appointed  by  his 
country  to  aid  the  plenipotentiary  and,  under  his  supervision, 
to  take  part  in  the  proceedings.  He  aids  and  advises,  but  it 
is  the  plenipotentiary  who  assumes  responsibility  for  the  act 
and  is  alone  authorized  to  sign  proceedings.  It  is  natural, 
therefore,  that  plenipotentiaries  should  register  in  any  one 
of  the  commissions  or  all  of  them,  according  to  their  own  con- 
venience, but  that  technical  delegates  should  only  take  part  in 
the  commissions  for  which  they  were  designated  by  their  plenipo- 
tentiaries. The  secretaries  of  the  various  delegations  and  the 
minor  officials  generally  did  not  form  part  of  the  Conference, 
strictly  so-called.  The  plenipotentiaries  and  technical  dele- 
gates were  accredited  to  the  Conference  and  were  necessary  to 
its  successful  operation.  The  secretaries  of  the  delegation  and 
the  lesser  officials  were,  in  reality,  accredited  to  the  delegation, 
not  to  the  Conference,  and  while  they  no  doubt  performed 
very  valuable  services,  these  services  were  rendered  to  the  dele- 
gations as  such,  not  to  the  Conference. 

The  second  article  of  the  Reglement  provided  for  the  sub- 
division of  the  Conference  into  commissions.  The  reason  for 
this  was  evident,  for  the  program  proposed  by  the  Russian 
Government  and  accepted  by  the  powers  represented  at  the 
Conference,  was  long,  elaborate,  and  susceptible  of  separa- 
tion into  groups.  The  conference  of  1899  had  found  it  neces- 
sary to  apportion  the  work  among  three  commissions.  But 
inasmuch  as  the  program  of  1907  was  more  elaborate,  and  as 
the  representatives  were  much  more  numerous,  it  seemed  nec- 
essary not  merely  to  form  three,  but  four  commissions.  The 
recommendation  for  the  formation  of  four  commissions  and 
the  distribution  of  the  program  among  them  were  agreed  to 
as  follows : 


114 


THE  HAGUE  PEACE  CONFERENCES 


First  Commission. 

Arbitration. 

International  commissions  of  inquiry  and  questions  con- 
nected therewith. 


Second  Commission. 

Improvements  in  the  system  of  the  laws  and  customs  of 
land  warfare. 

Opening  of  hostilities. 

Declarations  of  1899. 

Rights  and  obligations  of  neutrals  on  land. 

Third  Commission. 

Bombardment  of  ports,  cities,  and  villages  by  a naval  force. 

Laying  of  torpedoes,  etc. 

The  rules  to  which  the  vessels  of  belligerents  in  neutral  ports 
should  be  subjected. 

Additions  to  be  made  to  the  Convention  of  1899  in  order  to 
adapt  to  maritime  warfare  the  principles  of  the  Geneva  Con- 
vention of  1864,  revised  in  1906. 

Fourth  Commission. 

Transformation  of  merchant  vessels  into  war  vessels. 

Private  property  at  sea. 

Delay  allowed  for  the  departure  of  enemy  merchant  vessels 
in  enemy  ports. 

Contraband  of  war.  Blockades. 

Destruction  of  neutral  prizes  hy  force  majeure. 

Provisions  regarding  land  warfare  which  should  also  be 
applicable  to  naval  warfare. 

Articles  3 and  4 relate  to  the  official  organization  of 
commissions  and  sub-commissions.  A careful  reading  of 
these  articles  shows  at  once  the  relation  of  the  commission 
to  the  Conference,  on  the  one  hand,  and  the  sub-commission 
to  the  commission,  on  the  other.  The  commission  is  the 
offspring  of  the  Conference,  and  the  Conference  retained  in 
its  own  hands  the  right  to  appoint  the  president  and  the  vice- 


GENERAL  SURVEY  OF  THE  SECOND  PEACE  CONFERENCE  115 


president  of  each  commission.  This  may  seem  natural,  but 
it  was  clearly  the  result  of  design;  for  the  control  of  the  com- 
mission meant  practically  the  control,  not  merely  of  the  pro- 
ceedings before  the  commission,  but  of  the  positive  results 
of  the  Conference.  While  it  is  stated  that  the  Conference 
shall  officer  the  commissions,  it  must  not  be  supposed  that 
anybody  was  proposed  from  the  floor  of  the  Conference.  The 
president  submitted  the  list  of  officers  and  the  Conference 
assented,  and  perhaps  M.  de  Nelidow  would  have  been  aston- 
ished had  he  been  told  that  his  various  appointes  were  not 
freely  elected  by,  and  therefore  not  the  choice  of  the  Con- 
ference. 

Leaving  out  the  honorary  presidents  and  the  vice  presidents, 
the  effective  presidents,  that  is,  chairmen,  of  the  various  com- 
missions were : First  Commission,  M.  L6on  Bourgeois,  of  France; 
Second  Commission,  M.  Beernaert,  of  Belgium;  assistant  presi- 
dent, M.  T.  M.  C.  Asser,  of  Holland;  Third  Commission,  Count 
Tornielli,  of  Italy;  and  Fourth  Commission,  M.  de  Martens,  of 
Russia.  From  this  list,  it  is  seen  at  once  that  the  chairmen 
selected  were  fully  abreast  of  their  duties,  because,  with  the 
exception  of  Count  Tornielli,  they  had  all  acted  as  chairmen 
in  the  Conference  of  1899;  but  however  competent  these  presi- 
dents were,  and  no  criticism  whatever  is  made  of  their  ability, 
impartiality,  and  deep  interest  in  the  work  of  the  com- 
missions entrusted  to  their  care,  the  fact  remains  that  they 
were  selected  by  Russia — not  by  the  Conference  at  large,  and 
it  is  a further  fact  that,  although  the  United  States  was  the 
real  initiator  of  the  Conference,  no  American  delegate  was 
entrusted  with  the  presidency  of  a commission,  although 
Messrs.  Choate  and  Porter  were  honorary  presidents  of  the 
Third  and  Second  Commissions,  respectively. 

The  reason  for  M.  Asser’s  selection  as  deputy  president  was 
that  the  precarious  condition  of  M.  Beernaert’s  health  made 
it  uncertain  whether  or  not  he  would  be  able  to  preside  in 
person  during  the  Conference. 

Continuing  the  examination  of  Article  3,  it  is  to  be  noted 
that  each  commission  was  to  appoint  its  secretary  and  reporter; 


116 


THE  HAGUE  PEACE  CONFERENCES 


but  as  the  president  of  the  commission  either  directly  sug- 
gested or  indirectly  proposed  these  functionaries,  it  is  at  once 
apparent  that  the  various  commissions  were  officered  directly 
or  indirectly  by  the  Conference — that  is  to  say,  its  presi- 
dent, and  that  the  control  and  supervision  of  the  entire  Con- 
ference was  centered  in  the  first  delegate  of  Russia. 

Passing  now  to  Article  4,  it  is  seen  that  the  sub-division 
of  the  commission  was  left  to  the  commission  in  question, 
and  that  its  officers,  technically  called  its  “bureau,”  were 
to  be  determined  by  it.  As  a matter  of  fact,  each  commission, 
with  the  exception  of  the  fourth,  was  divided  into  sub- 
commissions, known  respectively  as  the  first  and  second  sub- 
commission. M.  Bourgeois  wisely  and  fortunately  took  upon 
himself  the  presidency  of  the  First  Commission  and  of  each  sub- 
commission, and  presided  in  person  over  two  of  the  three  com- 
mittees of  examination  (A  and  B)  of  the  First  Sub-Commission- 
as  well  as  the  committee  of  examination  of  the  Second  Sub, 
Commission,  charged  with  the  consideration  of  the  project  for  an 
international  prize  court.  It  is  difficult  to  mention  the  name  of 
M.  Bourgeois  without  pausing  to  pay  a tribute  to  his  untiring 
devotion  to  the  aims  and  purposes  of  the  Conference.  His 
infinite  tact,  his  unfailing  courtesy,  his  wide  experience  as  a 
presiding  officer  of  parliamentary  as  well  as  of  diplomatic 
bodies,  his  profound  knowledge  of  public  affairs  and  the 
relative  importance  of  general  principles  and  of  intricate 
detail,  his  willingness  to  sacrifice  the  non-essential  to  funda- 
mentals, and  the  spirit  of  conciliation  and  compromise  which 
illumined  his  person  and  mellowed  his  speech,  made  him  not 
only  a power  but  a controlling  influence  for  good  in  all  that  con- 
cerned the  Conference,  and  the  commissions  of  which  he  was 
president. 

The  secretary  of  each  commission,  sub-commission,  or  com- 
mittee, performed  the  duties  ordinarily  incumbent  upon  such 
officer.  The  reporters,  however,  are  unfamiliar  to  the  American 
public,  although  elsewhere  well  known  and  appreciated.  The 
function  of  a reporter  was  admirably  defined  and  illustrated 
in  the  First  Conference  by  M.  Descamps,  who  said : 


GENERAL  SURVEY  OF  THE  SECOND  PEACE  CONFERENCE  117 


The  reporter  of  a diplomatic  conference  should  present  to 
the  full  assembly  the  general  character  of  the  discussions,  and 
the  exact  nature  of  the  solutions  proposed,  unclouded  by  the 
expression  of  his  personal  opinion.^ 

And  his  own  report  of  the  proceedings  of  the  Third  Commis- 
sion, regarding  the  pacific  settlement  of  international  disputes, 
is  a masterpiece.* 


' Conference  Internationale  de  la  Paix,  1899,  part  III,  Second  Commission, 
p.  1.  At  the  first  session  of  the  Third  Commission  its  accomplished  president, 
M.  Bourgeois,  remarked;  “The  Reporter  should  be  neither  the  advocate  of 
a thesis  nor  the  representative  of  a majority,  but  the  faithful  interpreter 
of  the  opinions  expressed  by  all  members.”  Ib.,  part  IV,  Third  Commis. 
sion,  p.  1. 

’ Of  M.  Descamps’  remarkable  exposition  of  the  labors  of  the  committee 
of  examination  of  the  Third  Commission  (Conf4rence  Internationale  de 
la  Paix,  1899,  part  IV,  Third  Commission,  pp.  10-14)  M.  Bourgeois  said; 

“That  the  applause  which  has  greeted  the  words  of  M.  Chevalier  Des- 
camps bear  witness  to  the  sentiments  felt  by  the  assembly  upon  hearing 
the  exposition,  so  clear  and  highly  inspiring,  which  has  just  been  presented 
to  it. 

“This  exposition  will  remain  the  most  lucid  and  useful  commentary 
of  the  provisions  which  will  be  reached  concerning  arbitration,  and  it 
will  be  the  surest  guide,  not  only  for  the  members  of  the  Conference,  in 
the  course  of  their  discussions,  but  also  in  the  future  for  the  governments 
themselves,  when  it  is  a question  of  interpreting  the  text  of  the  convention. 

“Under  these  conditions,  M.  le  Chevalier  Descamps  has  a right  to  the 
gratitude  of  all,  and  the  President  takes  it  upon  himself  to  convey  it  with 
a keen  and  sincere  emotion.” 

To  which  M.  Beldiman  of  Roumania  replied  at  the  opening  of  the  next 
session,  that  he  “fully  concurred  in  the  words  of  praise  which  the  Presi- 
dent addressed  to  Chevalier  Descamps  upon  the  occasion  of  the  very 
clear  exposition  he  presented  in  the  preceding  session. 

“ However,  so  far  as  the  official  interpretative  character  which  has  been 
attributed  to  this  work,  without  contesting  its  perfect  faithfulness,  perfect 
freedom  of  action  must  be  left  to  my  Government  upon  this  point.” 

At  the  ninth  session  M.  Bourgeois  said  of  M.  Descamps  and  his  report; 

“I  congratulate  myself,  gentlemen,  upon  the  response  which  you  have 
just  made  to  my  question.  I see  in  it  a striking  manifestation  of  the 
approval  which  you  have  given  to  the  very  remarkable  work  of  our  reporter, 

“In  preparing  this  memorable  document,  M.  Descamps  rendered  two 
great  services  to  the  cause  which  has  brought  us  together  here.  In  the 
first  place,  he  has,  by  a continuous  and  perfectly  clear  commentary,  made 
easily  comprehensible,  and  interpreted  well  all  the  clauses  which  you  have 
adopted  with  a view  to  the  pacific  adjustment  of  international  disputes.  I 


118 


THE  HAGUE  PEACE  CONFERENCES 


A leading  delegate  of  the  Second  Conference,  M.  Renault, 
and  its  most  accomplished  reporter,  says  that: 

the  reports  presented  to  the  Conference  from  the  various  com- 
missions constitute  the  exposition  of  the  reasons  involved  in 
and  leading  to  the  negotiation  of  the  conventions.”  ^ 

The  procedure  was  practically  the  same  for  all  commis- 
sions. The  propositions  presented  by  various  delegations  or 
delegates  were  considered,  and  when  substantial  agreement 
had  been  reached,  or  it  seemed  advisable  to  refer  the  settle- 
ment of  details  to  a small  body,  a commission  of  examination 
was  formed,  generally  composed  of  representatives  from  the 
delegations  presenting  propositions.  In  this  way,  the  First 
Commission  and  its  First  Sub-Commission  considered  matters 
dealing  with  arbitration;  the  Second  Sub-Commission  devoted 
itself  exclusively  to  the  prize  court.  A committee  of  examina- 
tion was  appointed  for  the  First  Commission,  to  consider  the 
amendments  to  be  made  to  the  convention  for  the  peaceful 
adjustment  of  international  differences,  and  this  committee  of 
examination  dealt  with  the  various  propositions  concerning 
the  subjects  of  good  offices,  mediation,  and  the  commission  of 


have  already  said  that  the  first  exposition  which  he  made  to  you  of  these 
provisions  would  be  a sure  guide  not  only  for  the  [delegates  in  their  dis- 
cussions, but  also  for  the  governments.  I can  say  today  that  with  your 
support,  the  report  of  M.  Descamps  will  be  a useful  guide  to  all  civilized 
nations. 

“But  your  reporter  has  rendered  you  still  another  service.  Not  only 
has  he  translated  exactly  the  intention  of  those  who  drew  up  each  article, 
he  has  further  clarified  all  portions  of  your  work  by  his  great  ability  and 
his  profound  knowledge  of  international  law. 

“M.  Descamps  is  one  of  those  in  the  world  who  have  devoted  themselves 
to  the  cause  of  arbitration  in  the  best  and  most  useful  way.  He  has  put 
into  his  duties  as  reporter,  besides  the  fruit  of  his  experience,  all  his  person- 
ality, and  I am  happy  to  address  to  him  here  again  the  expression  of  our 
deep  gratitude.”  (Conference  Internationale  de  la  Paix,  1899,  part  IV, 
Third  Commission,  pp.  70-71). 

' See  Professor  Renault’s  excellent  article  on  the  Work  of  The  Hague^ 
p.  586,  in  La  Vie  Politique  des  Deux  Mondes,  edited  by  M.  Achille  Viallate 
(1908). 


GENERAL  SURVEY  OF  THE  SECOND  PEACE  CONFERENCE  119 


inquiry.  Later,  when  the  subjects  of  arbitration  and  the 
proposition  for  the  establishment  of  a permanent  court  of 
abritral  justice  were  before  the  commission,  M.  Bourgeois 
suggested  that  the  original  committee  should  be  enlarged  by 
the  addition  of  certain  members,  and  the  committee  as  thus 
enlarged  was  called  Committee  of  Examination  A.  At  the 
same  time,  other  additional  members  were  added  to  the  orig- 
inal committee,  primarily  for  the  consideration  of  the  court 
of  arbitral  justice,  and  when  thus  sitting,  was  known  as 
Committee  of  Examination  B.  Finally,  the  details  of  the 
revision  of  the  convention  for  the  adjustment  of  international 
conflicts  in  the  matter  of  procedure,  were  referred  to  a com- 
mittee known  as  Committee  of  Examination  C selected  by  the 
president  from  the  members  of  Committee  of  Examination 
A.  It  thus  appears^that  the  Firat  Sub-Commission  of  the  First 
Commission  had  no  less  than  three  committees  of  examination. 

Turning  now  to  Article  5 of  the  Reglement,  it  is  observed 
that  a committee  (Comite  de  Redaction)  was  formed  for  the 
purpose  of  coordinating  the  acts  adopted  by  the  Conference 
and  preparing  them  in  their  final  form.  This  committee  was 
appointed  early  in  the  session,  but  as  it  was  so  large  as  to  be 
unwieldy,  a sub-committee  consisting  of  eight  members  of 
the  Conference,  under  the  presidency  of  M.  Renault,  was 
appointed.  This  committee  performed  services  of  the  greatest 
value.  It  prepared  preambles  for  all  of  the  conventions;  it 
revised  the  language  without  changing  the  meaning  of  the 
various  conventions;  and  it  inserted  in  their  proper  places  the 
various  propositions  which  had  been  voted  but  not  assigned 
any  particular  place  in  a convention.  In  a few  instances 
the  sub-committee  suggested  changes  of  substance  as  well  as  of 
form,  but  these  changes  were  reported  to  the  full  Committee 
of  Redaction,  and  by  it  reported  to  the  Conference,  so  that  the 
few  changes  of  substance,  as  well  as  the  many  changes  of  form, 
were  voted  upon  by  the  Conference,  and  derived  their  validity 
from  the  approval  of  the  Conference  as  a whole. 

Passing  now  to  other  portions  of  the  Reglement,  it  is  seen 
that  by  Article  6 the  members  of  the  delegations  were  author- 


120 


THE  HAGUE  PEACE  CONFERENCES 


ized  to  take  part  in  the  deliberations  of  the  plenary  sessions  of 
the  Conference,  as  well  as  in  the  commissions  of  which  they 
formed  a part,  and  that  the  members  of  one  and  the  same 
delegation  might  mutually  replace  one  another,  and  by  Arti- 
cle 7,  members  of  the  Conference  attending  meetings  of  the 
commissions  of  which  they  were  not  members  were  not  entitled 
to  take  part  in  the  deliberations  without  special  authorization 
by  the  presidents  of  the  commissions. 

It  has  been  stated  that  the  Conference  was  a diplomatic 
assembly  and  that  each  delegation  had  a right  to  one  vote, 
and  it  is  a matter  of  interest  to  mention  that  the  vote  was 
taken  by  roll-call  of  the  States,  according  to  the  alphabetical 
order  of  their  names  in  French. 

It  is  also  perhaps  a matter  of  interest  to  state  that  a delega- 
tion voted  affirmatively  by  replying  “Yes,”  and  begatively 
by  “No,”  and  that  it  frequently  declined  to  vote  by  stating 
that  it  “abstained,”  or  that  it  voted  subject  to  reservation. 

A great  deal  of  criticism  was  aroused  in  the  First  Conference 
by  the  fact  that  contrary  to  parliamentary  procedure,  the 
vote  was  taken  not  upon  the  amendment,  but  upon  the 
original  proposition,  but  this  departure  from  parliamentary 
procedure  was  corrected  in  the  Second  Conference,  and  the 
amendment  was  first  put  to  vote,  as  is  the  rule  in  delibera- 
tive bodies. 

Immediately  upon  the  acceptance  of  the  program  and  its 
assignment  to  the  commissions,  Baron  Marschall  von  Bieber- 
stein  arose  and  stated  that  his  Government  had  instructed  him 
to  propose  to  the  Conference  the  establishment  of  an  interna- 
tional court  of  appeal  in  prize  cases,  leaving  to  national  tri- 
bunals the  right  to  pass  upon  the  validity  of  prize  cases  in 
the  first  instance ; that  this  proposition  was  closely  related  to  the 
work  of  the  First  Conference,  and  inasmuch  as  it  looked  to 
the  peaceful  settlement  of  conflicts,  it  was  within  the  sphere  of 
the  First  Commission.  Sir  Edward  Fry  stated  that  the 
British  delegation  had  received  like  instructions,  and  that  it 
would  be  a pleasure  to  collaborate  with  other  delegations  in 
thus  extending  the  principle  of  arbitration.  It  thus  appears 


GENERAL  SURVEY  OF  THE  SECOND  PEACE  CONFERENCE  121 


that  the  Russian  program  was  enlarged  in  a very  important 
point  by  the  addition  of  a project  which  was  not  the  subject 
of  previous  diplomatic  negotiation  and  agreement.  Closely 
related  to  arbitration  and  the  judicial  settlement  of  inter- 
national disputes,  it  was  clearly  within  the  scope  of  the  con- 
ference, and  if  not  within  the  letter,  clearly  within  its  spirit. 

It  will  be  recalled  that  the  United  States  reserved  the  right 
to  propose  the  limitation  of  force  in  the  collection  of  contract 
debts.  Mr.  Choate  therefore  reserved  at  the  same  session 
the  right  to  present  such  a project  to  the  Conference,  and  at 
the  same  time  the  right  to  submit  all  other  projects  within  the 
competence  of  the  Conference  but  not  mentioned  in  its  program. 
The  president  stated  that  the  submission  of  projects  was  covered 
by  the  ninth  rule  of  the  Reglement;  that  propositions  are  of 
two  kinds;  first,  those  which  directly  concern  the  subjects 
enumerated  in  the  program,  and  others  which  are  related  to 
or  connected  with  the  provisions  of  the  program.  These 
latter  should  be,  in  accordance  with  Article  9 of  the  R6gle- 
ment,  reduced  to  writing  and  communicated  to  the  president, 
in  order  to  be  printed  and  distributed  before  being  brought  to 
discussion.  He  further  said  that  the  British  delegation  had 
acted  in  strict  conformity  with  the  rule  by  addressing  a letter 
to  him,  in  which  the  British  delegation  stated  that  it  considers 
that  the  adoption  of  the  program  does  not  exclude  the  possibil- 
ity of  discussing  other  subjects  which  may  be  presented  during 
the  meeting  of  the  Conference,  and  reserving  the  right  so  to 
do.  The  explanation  of  the  president  was  satisfactory  to 
the  Conference. 

The  incident,  slight  as  it  may  seem,  was  not  unimportant, 
because  on  the  first  business  day  various  delegations  claimed 
the  right  not  only  to  present  propositions  springing  directly 
from  the  program,  but  the  further  right  to  present  various 
projects  within  the  scope  of  a peace  conference,  although  such 
subjects  might  not  or  did  not  figure  in  the  official  program. 
On  several  occasions  during  the  Conference  exception  was 
taken  that  the  matter  for  discussion  did  not  fall  within  the  pro- 
gram, and  therefore  was  not  properly  the  subject  for  discussion. 


122 


THE  HAGUE  PEACE  CONFERENCES 


A generous  view  was,  however,  taken  in  each  instance  and  it 
does  not  seem  that  any  serious — certainly  no  insurmountable — 
objection  was  made  to  the  discussion  of  any  subject  which,  by 
fair  interpretation,  came  within  the  scope  of  the  Conference. 

Article  10  provided  that  the  public  might  be  admitted  to  the 
plenary  sessions  of  the  Conference  upon  presentation  of  tickets 
distributed  by  the  Secretary  General  with  the  authority  of  the 
President.  A final  clause  of  the  article  stated  that  the  bureau 
might  decide  at  any  time  that  certain  sessions  shall  not  be 
public. 

This  article  did  not  mean  that  the  Conference  was  open  to 
the  public,  but  that  the  public  might  be  admitted,  as  it  always 
was,  to  the  purely  formal  reunions  of  the  Conference  in  plenary 
session  where  the  results  already  reached  in  commission  were 
approved,  or,  as  happened  in  the  case  of  the  proposed  con- 
vention concerning  neutral  persons,  referred  back  to  the  com- 
mission for  further  action. 

The  public  was  excluded  from  the  commissions  where  the 
real  work  was  done,  but  the  notices  given  to  the  press  by  the 
Secretary’s  office  and  through  Mr.  Stead’s  Courrier  de  la  Con- 
ference de  la  Paix  were  sufficiently  full  and  accurate. 

The  minutes  of  the  Conference,  technically  known  as  proces- 
verbaux,  were  in  French,  and,  while  the  various  speeches  and 
addresses  were  not  reported  verbatim,  the  abstracts  were 
usually  sufficiently  extended  and  accurate.  The  minutes  were 
printed  after  each  session,  distributed  to  the  members  for 
their  information  and  for  correction  of  mistakes,  and  as 
each  delegate,  under  Article  11,  had  the  right  to  insert  in  full 
the  text  of  his  address,  it  is  improbable  that  any  matter  of 
importance  was  omitted  from  the  minutes. 

The  Conference  in  its  plenary  session  had  its  official  proces- 
verbal,  each  commission  and  sub-commission  had  its  proc^s- 
verbal,  and  the  committees  of  examination  of  the  First,  Fourth 
and  Third  Commission  (Second  Sub-Commission)  had  likewise 
proces-verbaux. 

As  the  reports  of  the  various  reporters  were  in  French,  and 


GENERAL  SURVEY  OF  THE  SECOND  PEACE  CONFERENCE  123 


formed  a part  of  the  records  of  the  sub-commission  and  various 
commissions,  it  will  be  seen  that  the  record  of  the  Conference 
as  a whole  was  kept  both  with  fullness  and  accuracy.^ 

As  stated  in  Article  12  of  the  Reglement,  French  was  the 
official  language  of  the  Conference,  but  any  member  was  per- 
mitted to  speak  in  any  other  language.  In  such  cases,  the 
addresses  were  summarized  orally  in  French,  so  that  all  mem- 
bers of  the  Conference  might  understand  what  had  been  said. 
As  a matter  of  fact,  only  four  languages  were  employed,  most 
delegates  using  French.  Mr.  Choate  always  addressed  the 
Conference  in  English,  and  his  addresses  were  ordinarily  sum- 
marized in  French  by  Baron  d’Estournelles  de  Constant,  or 
by  M.  Fromageot.  The  first  delegate  of  Japan  sometimes 
spoke  in  French,  and  sometimes  in  English;  but  toward  the 
end  of  the  Conference,  he  usually  spoke  in  French.  The 
second  delegate  from  Bulgaria  once  addressed  the  First  Com- 
mission in  English,  and  on  a few  occasions  a Turkish  delegate 
spoke  in  English.  Mr.  Rose  delivered  one  address  in  English, 
and  Mr.  John  W.  Foster  delivered  his  address  on  the  Immu- 
nity of  Private  Property  in  English.  Dr.  Lammasch,  when 
addressing  an  appeal  directly  to  the  American  delegation,  took 
the  liberty  of  paraphrasing  in  English  what  he  had  previously 
said  in  French,  and  M.  Kriege,  when  the  subject  was  intricate 
or  of  great  importance,  ordinarily  addressed  the  convention 
in  German,  which  was  immediately  translated  into  French  by 


‘ The  proceedings  of  the  Conference  will  be  published  by  the  Dutch 
Government  in  due  course  as  appears  from  the  following  official  announce- 
ment: 

Le  Recueil  des  Actes  de  la  Seconde  Conference  de  la  Paix  est  divise 
en  trois  volumes,  dont  le  premier  contient  le  programme,  la  liste  des 
deiegues,  les  proces-verbaux  des  seances  pieni^res,  les  rapports  presentes 
h la  Conference  et  les  Conventions, — le  second  les  protocoles  des  seance, 
de  la  Premiere  Commission,  de  ses  Sous-Commissions  et  de  ses  Comites 
ainsi  que  les  Annexes  o(i  se  trouvent  consignes  les  projets,  propositions  et 
autres  communications  des  delegations  concernantlesmatieres  dontla  usage. 
Commission  eta  it  saisie,  enfin  des  tableaux  synoptiques  dresses  ^ eon 
au  cours  des  deliberations, — le  troisieme  toutes  les  pieces  analogues  se 
rapportant  aux  travaux  des  trois  autres  Commissions.  A la  fin  de  ce 
troisieme  volume  se  trouve  une  table  alphabetique  des  matieres. 


124 


THE  HAGUE  PEACE  CONFERENCE 


M.  Asser  or  M.  Karnebeek.  It  is  thus  seen  that  French  was 
the  oflBcial  language,  and  that  other  languages  were  rarely- 
resorted  to  by  the  delegates. 

Immediately  after  the  president’s  address  at  the  first  ses- 
sion of  the  Conference,  on  June  15,  the  president  proposed  for 
secretary-general,  M.  W.  Doude  van  Troostwizk,  Minister 
Resident  of  Her  Majesty  the  Queen  of  the  Netherlands,  and  as 
editor  of  the  Proems- Verbal  (Secretaire  G6n6ral  de  Redaction), 
M.  Prozor,  Technical  Delegate  of  Russia.  The  personnel  of 
the  secretary’s  office  was  composed  of  minor  officials  of  the 
various  delegations,  chosen  in  such  a way  as  to  represent  not 
merely  the  countries,  but  the  languages  at  the  Conference. 
The  secretary-general  detailed  various  members  of  his  staff  to 
the  Conference  in  plenary  session,  to  the  different  commissions, 
sub-commissions,  and  committees  of  examination,  so  that  the 
labor  of  reporting  speeches  and  forming  the  proces-verbal 
might  be  done  with  accuracy  and  dispatch.  The  proc^s- 
verbaux  were  prepared  with  remarkable  rapidity,  were  uni- 
formly delivered  before  the  meeting  of  the  next  session,  and, 
considering  the  magnitude  of  the  task  and  the  intricacy  of 
detail,  were  not  only  marvels  of  accuracy,  but  worthy  to 
serve  as  models.  M.  Doude  van  Troostwizk,  M.  Prozor  and 
their  associates  merited  the  praises  repeatedly  lavished  upon 
them. 

6.  The  Work  of  the  First  Commission 

Having  thus  considered,  perhaps  in  too  great  detail,  the 
calling  of  the  Conference,  its  opening  and  organization,  we 
are  now  prepared  to  consider  the  positive  results  of  the  Con- 
ference, as  attested  by  the  Final  Act. 

There  are  two  ways  in  which  we  may  set  forth  the  work  of 
the  Conference:  first,  by  considering  each  commission  and 
the  results  of  its  labors;  or,  second, by  disregarding  the  divi- 
sion into  commissions,  we  may  consider  the  Conference  as 
a whole,  and  its  work  as  evidenced  by  the  Final  Act.  Each 
method  has  its  advantages.  As,  however,  each  convention, 
declaration,  resolution,  and  recommendation  will  be  considered 


GENERAL  SURVEY  OF  THE  SECOND  PEACE  CONFERENCE  125 


later  in  detail,  approximately  in  the  order  of  the  Final  Act,  it 
is  perhaps  advisable  to  give  in  this  place  a general  survey  of 
the  work  of  the  commissions  and  the  means  by  which  it  was 
produced.  This  method  will  have  the  great  advantage  of 
treating  together  the  really  great  and  important  work  of  the 
Conference,  namely,  the  subject  of  arbitration.  First,  then, 
of  the  First  Commission. 

It  will  be  remembered  that  the  greatest  single  piece  of  con- 
structive work  of  the  First  Conference  was  the  convention  for 
the  peaceful  adjustment  of  international  differences.  This 
measure  would  alone  have  justified  the  calling  of  the  Conference, 
and  its  successful  application  within  the  past  few  years  has 
justified  its  framers  in  the  hope  that  it  would  be  of  great  serv- 
. ice  in  maintaining  the  world’s  peace.  The  mere  fact  that 
a litigant  can  point  to  The  Hague  Court  and  request  its  adver- 
sary to  resort  to  it,  is  a great  gain  for  the  rational  solution  of 
difficulties  susceptible  of  judicial  settlement. 

The  convention  consists  of  four  principal  divisions : first,  the 
sections  relating  to  good  offices  and  mediation.  Articles  2 to 
8;  second,  the  provisions  relating  to  and  establishing  a court 
of  international  inquiry,  9 to  14;  third,  the  sections  relating 
to  the  nature  of  arbitration,  and  its  applicability  to  interna- 
tional disputes,  15  to  29 ; and,  fourth,  the  sections  relating  to 
arbitral  procedure,  30  to  57.  The  sections  dealing  with  good 
offices  and  mediation  were  happily  applied  by  President 
I Roosevelt  and  led  to  the  termination  of  the  Russo-Japanese 
' War.  The  court  of  international  inquiry,  limited  strictly  to 
! the  ascertainment  of  facts  in  a controversy,  has  been  called 
into  being  once,  and  its  settlement  of  the  controversy  aris- 
ing out  of  the  Dogger  Bank  incident  adjusted  an  acute  inter- 
national incident  which  might  otherwise  have  resulted  in 
i war. 

The  sections  dealing  with  arbitration,  recognizing  and  recom- 
j mending  as  they  did  the  peaceful  and  reasonable  solution  of 
! differences  which  diplomacy  failed  to  settle,  gave  interna- 
tional sanction  to  this  substitute  for  war,  and  have  resulted 
in  the  negotiation  of  more  than  fifty  treaties  by  which  nations 


126 


THE  HAGUE  PEACE  CONFERENCES 


pledged  themselves  to  arbitrate  their  differences. ‘ The  estab- 
lishment of  a court  to  which  these  differences  may  be  referred, 
and  by  which  they  may  be  adjudicated,  according  to  a code  of 
procedure  reasonable  and  comprehensive,  leads  to  the  hope 
that,  in  no  distant  future,  justice  may  be  administered  impar- 
tially and  judicially,  between  nation  and  nation,  as  it  is  now 
administered  between  man  and  man  in  national  courts  of 
justice.  How  the  First  Commission  revised  this  great  conven- 
tion and  made  it  more  adequately  meet  international  needs 
will  be  described  later.  But  the  commission  did  not  content 
itself  with  revising  the  convention;  it  sought  by  four  measures 
to  advance  the  cause  of  international  justice  and  peace  and 
thus  to  justify  its  existence. 

In  the  first  place,  the  commission  endeavored  to  register  an 
advance  in  the  matter  of  arbitration  by  pledging  the  nations 
internationally  to  arbitrate  their  differences . An  agreement  to 
arbitrate  is  of  two  kinds:  special  and  general,  and  a nation 
may  well  agree  to  arbitrate  certain  kinds  of  differences  already 
existing,  whereas  it  may  be  unwilling  to  pledge  itself  in  advance 
to  arbitrate  all  future  differences,  or  indeed  differences  of  a 
particular  category.  An  agreement  to  arbitrate  an  existing, 
concrete  difference,  is  a gain;  a present  agreement  to  arbitrate 
future  differences,  be  the  category  large  or  small,  would  be  a 
triumph  for  the  cause  of  international  justice  and  peace.  If 
the  nations  bound  themselves  to  arbitrate  these  difficulties 
as  they  arise,  the  treaty  would  technically  be  called  a treaty 
of  compulsory  arbitration,  for  compulsory  arbitration  merely 
means  a self-imposed  present  agreement  to  arbitrate  future 
differences.  It  is  voluntary  in  the  sense  that  no  nation  is 
coerced  to  it ; it  is  obligatory  in  that  it  binds  the  nation  which 
has  agreed  to  it. 

In  his  opening  address  to  the  First  Commission,  M.  Bour- 
geois stated  that  nations  might  well  do  jointly  that  which  they 
had  done  separately,  or  in  groups,  and  that  a general  treaty  of 
arbitration  might  well  result  from  the  labors  of  the  commis- 


See  Appendix,  pp.  807-814 


GENfiEAL  SURVEY  OF  THE  SECOND  PEACE  CONFERENCE  127 


sion.  An  examination  of  arbitration  agreements  shows  that 
nations  are  averse  to  pledging  themselves  in  advance  to  arbi- 
trate questions  concerning  their  independence,  vital  interests, 
or  honor,  and  as  each  nation  reserves  to  itself  the  right  to 
decide  when  independence,  vital  interests  and  honor  are  con- 
cerned, it  may  seem  that  the  agreement  to  arbitrate  may 
be  of  little  practical  value.  It  should  not  be  forgotten,  how- 
ever, that  a refusal  to  arbitrate  exposes  a nation  to  interna- 
tional criticism,  and  that  the  condemnation  of  enlightened 
public  opinion  is  in  itself  no  mean  penalty.  There  can  be  no 
doubt,  that  the  adoption  of  such  a general  agreement 
would  have  been  an  advance,  for  if  it  were  not  an  advance 
it  would  not  be  opposed  by  nations  averse  to  arbitration. 
Baron  Marschall  von  Bieberstein  stated  that  Germany  was  in 
favor  of  compulsory  arbitration,  but  that  his  country  was 
opposed  to  a project  containing  the  reserves  above  mentioned, 
but  added  that  he  would  examine  without  bias  {sans  parti  pris) 
the  project  for  unlimited  and  unrestricted  arbitration  of  cer- 
tain specified  lists.  It  seemed,  therefore,  that  the  cause  of 
arbitration  was  destined  to  a certain  and  speedy  triumph; 
for  the  friends  of  progress  had  already  proposed  a treaty  of 
arbitration  containing  a list  of  subjects  which  did  not  seem 
likely  to  involve  independence,  vital  interests,  and  honor,  and 
which  could  therefore  safely  be  arbitrated  without  restriction. 
The  address  of  Baron  Marschall  von  Bieberstein  aroused  the 
greatest  enthusiasm;  for, as  the  opposition  of  Germany  in  the 
First  Conference  threatened  to  defeat  arbitration,  the  coopera- 
tion of  Germany  seemed  to  forecast  its  triumph  in  the  Second 
Conference.  The  exultation,  however,  was  of  short  duration, 
for  it  soon  became  painfully  evident  that  Germany,  while 
accepting  the  principle  of  obligatory  arbitration,  and  favoring 
i special  treaties  with  certain  carefully  selected  nations,  was 
i opposed  to  a general  treaty  of  arbitration  with  all  nations, 
whether  that  treaty  was  limited  to  the  arbitration  of  legal 
questions  and  the  interpretation  of  treaties,  with  the  time- 
honored  reserves,  or  whether  it  consisted  of  unrestricted 
arbitration  of  a carefully  selected  list  of  subjects.  An  exami- 


128 


THE  HAGUE  PEACE  CONFERENCES 


nation  sans  parti  pris  resulted  in  the  rejection  of  every  pro- 
posed subject  of  arbitration,  be  it  large  or  trivial.  The  rejoic- 
ing which  followed  Baron  Marschall  von  Bieberstein’s  declara- 
tion in  favor  of  compulsory  arbitration  and  his  promise  to 
examine  lists  sans  parti  pris  gave  way  to  gloom  and  depression 
after  Dr.  Kriege’s  speech  in  the  committee  of  examination, 
from  which  it  appeared  that  Germany  had  made  up  its  mind  to 
oppose  arbitration  in  any  form.  Dr.  Drago,  sitting  next  to 
me,  wrote  on  a slip  of  paper,  “This  is  the  death  of  arbitration,” 
and  it  was.  Weeks  of  discussion  failed  to  overcome  the 
opposition  of  Germany  and  its  slender  following.  It  can  not 
be  said,  however,  that  the  discussion  was  of  no  avail.  It 
showed  the  immense  progress  arbitration  had  made  since  the 
First  Conference;  for,  while  opposing  arbitration  in  the  con- 
crete, no  power  questioned  the  principle  of  obligatory  arbitra- 
tion, which,  as  will  be  seen  in  a subsequent  lecture,  was  unani- 
mously approved  by  the  Conference.  Germany’s  triumph,  was 
at  best,  a Phyrric  victory. 

In  expressing  personal  regret  at  the  attitude  of  Germany, 
I do  not  indulge  in  criticism,  because  Germany  had  as  much 
right  to  its  opinion,  formed  after  mature  consideration,  as 
the  other  States  had  to  theirs,  formed,  it  is  to  be  hoped,  after 
equally  careful  consideration.  Germany  has  not  been  an 
exponent  of  arbitration : its  triumphs,  leaving  aside  literature, 
science,  and  philosophy,  have  been  upon  the  battlefield.  It 
realized  the  hopes  of  centuries  in  a united  German  nation,  not 
in  the  study,  but  in  the  field,  and,  surrounded  as  it  is  by 
powerful  and  aggressive  neighbors,  it  is  determined  to  hold 
by  the  sword  that  which  the  sword  has  won.  It  is  seemingly 
unwilling  to  entrust  its  interests  to  the  world  at  large,  and  it 
claims  and  exercises  the  right  to  form  its  judgment  untram- 
meled by  treaty  or  public  opinion.  The  “era  of  blood  and 
iron”  is  not  yet  past. 

But  if  Germany  was  unwilling  to  enter  into  a general  treaty 
of  arbitration  with  all  nations  for  the  arbitration  of  all  subjects, 
Germany  showed  that  it  was  vdlling  to  enter  into  a special 
treaty  relating  to  a single  category  of  questions.  I refer  to 


GENERAL  SURVEY  OF  THE  SECOND  PEACE  CONFERENCE  129 


the  second  great  measure,  namely,  the  proposition  for  the 
restriction  of  force  in  the  collection  of  contract  debts,  intro- 
duced by  the  American  delegation  and  loyally  supported  by 
Germany.  Indeed,  I am  betraying  no  confidence  when  I state 
that  Germany  came  to  the  Conference  with  a carefully  pre- 
pared and  wholly  acceptable  project  on  the  subject,  which  so 
closely  resembled  the  American  project  presented  to  and  voted 
by  the  Conference,  that  it  could  have  been  accepted  as  a sub- 
stitute. This  was  the  clearest  case  of  an  agreement  for  arbi- 
tration of  a concrete  specific  case,  and  its  significance  is 
world- wide;  for,  as  will  be  seen,  the  nations,  assembled  in 
solemn  conference,  agreed  to  renounce  the  use  of  force  in  the 
collection  of  contract  debts,  provided  only  that  the  debtor 
nation  agrees  to  arbitrate,  that  it  actually  does  arbitrate, 
and  that  it  executes  the  arbitral  award  when  reached.  It  will 
be  recalled  that  the  United  States  reserved  the  right  to  bring 
this  subject  to  discussion,  thereby  testifying  to  its  importance, 
and,  if  it  be  borne  in  mind  that  the  agreement  is  in  reality  a 
case  of  obligatory  arbitration,  it  can  not  be  said  that  the  Con- 
ference contented  itself  with  a general  statement  of  the  prin- 
ciple, and  failed  to  embody  it  in  concrete  form,  or  that  Ger- 
many refused  to  accept  a concrete  embodiment  of  the  princi- 
ple because  it  opposed  and  caused  the  defeat  of  a general 
treaty  of  obligatory  arbitration. 

In  the  next  place,  an  attempt  was  made  to  establish  at  The 
Hague  a court  of  justice  for  the  settlement  of  international 
disputes,  to  be  composed  of  judges  trained  in  the  adminis- 
tration of  law  and  open  at  all  times  to  receive  and  adjudge, 
under  a sense  of  judicial  responsibility,  controversies  presented 
to  it.  A project  for  the  establishment  of  such  a court  was 
presented  by  the  American  delegation.  It  was  supported  by 
Great  Britain  and  Germany,  and  through  the  efforts  of  these 
three  delegations  and  the  devotion  of  M.  Bourgeois,  a project 
of  thirty-five  articles  was  finally  adopted  by  the  Conference, 
and  the  establishment  of  the  court  based  upon  the  project  was 
recommerided.  The  idea  of  a permanent  court  thus  triumphed. 
It  matters  but  little  that  the  composition  of  the  court  was  not 


130 


THE  HAGUE  PEACE  CONFERENCES 


agreed  upon.  The  world  is  ruled  by  ideas,  and  either  between 
the  meeting  of  the  conferences,  or  at  the  Third  Conference,  a 
court,  permanent  in  its  nature,  will  surely  be  established,  so 
that  disputes,  whether  arising  out  of  a universal  convention 
or  out  of  conventions  among  several  of  the  States,  may  be 
authoritatively  and  judicially  decided  by  a permanent  court 
of  nations.  It  is  indeed,  as  was  humorously  said,  a court 
without  judges — but  the  judges  will  enter  in  the  fullness  of  time. 

In  the  fourth  place,  the  First  Commission  attempted  and 
succeeded  in  establishing  an  international  court  of  prize. 
The  initiative  in  this  very  important  matter  was  taken  by  Ger- 
many and  Great  Britain  at  the  first  meeting  of  the  commission, 
and  the  projects  presented  by  Germany  and  Great  Britain  not 
only  served  as  a basis  for  discussion,  but  were  the  foundations 
upon  which  the  court  was  erected.  There  were,  however,  great 
and  seemingly  irreconcilable  differences  between  the  German 
and  the  British  propositions.  Germany  sought  to  provide  for  a 
court  to  be  constituted  upon  outbreak  of  war,  whereas  Great 
Britain  looked  to  the  establishment  of  a permanent  court. 
Germany  proposed  a court  of  five  members,  two  of  whom 
should  be  high  naval  officers  of  the  belligerent  countries,  the 
balance  of  the  court  to  be  selected  from  the  panel  of  judges  of 
the  permanent  court.  Great  Britain  proposed  a court  com- 
posed of  judges  selected  from  the  nations  having  a merchant 
marine  of  800,000  tonnage.  Germany  proposed  an  appeal  to 
be  taken  directly  from  the  court  of  first  instance.  Great 
Britain  an  appeal  only  from  the  court  of  last  resort.  The 
timely  and  courteous  intervention  of  Mr.  Choate  reconciled 
the  differences  by  proposing  that  the  court  should  be  per- 
manent, that  the  great  maritime  powers  should  be  permanently 
represented  in  the  court,  that  the  other  powers  should  have 
a proportional  representation,  that  an  appeal  should  be  taken 
from  the  court  of  first  instance  or  from  a decision  of  a national 
court  of  appeal,  according  to  the  preferences  of  local  legis- 
lation, and  that  naval  officers  might  act  in  an  advisory 
capacity  as  assessors  in  the  deliberations  but  that  they  should 
not  have  a vote  in  the  decision.  Mr.  Choate  also  manifested 


GENERAL  SURVEY  OP  THE  SECOND  PEACE  CONFERENCE  131 


his  interest  in  the  court  by  appearing  as  a joint  sponsor,  as  did 
France,  so  that  the  project  was  introduced  as  the  joint  pro- 
posal of  Germany,  Great  Britain,  France,  and  the  United 
States,  and  by  its  adoption  with  but  one  negative  vote,  it 
is  indeed  a project  for  an  international  court  of  prize.  As 
with  the  proposed  court  of  arbitral  justice,  so  with  the  inter- 
national court  of  prize,  the  wits  have  had  their  jest.  The 
one  was  a court  without  judges;  the  other  is  a court  with- 
out law,  because  the  nations  failed  to  codify  international  law, 
and  thus  supply  the  court  with  a code  of  maritime  law  to  be 
administered  and  interpreted  by  it.  But  the  nations  can  as 
easily  supply  the  law  for  the  prize  court  as  they  will  the  judges 
for  the  Court  of  Arbitration,  and  at  the  present  time  Great 
Britain  has  called  a conference  of  leading  maritime  nations, 
to  be  held  in  London  in  the  course  of  1908,  in  order  to  codify 
maritime  law  and  custom,  which  it  is  hoped  the  court,  when 
adopted  by  the  nations,  wUl  administer,  should  controver- 
sies be  presented  for  its  adjudication. 

The  First  Commission  therefore  has  four  claims  to  consider- 
ation and  respect,  namely,  first,  a careful,  painstaking,  and 
adequate  revision  of  the  convention  for  the  peaceful  settlement 
of  international  disputes;  second,  a declaration  in  favor  of 
obligatory  arbitration,  and  a convention  for  the  arbitration  of 
contract  claims;  third,  a project  for  the  establishment  of  a 
court  of  arbitral  justice;  and,  fourth,  a convention  for  the 
establishment  of  a court  of  prize.  To  have  been  able  to  per- 
fect or  add  in  some  small  measure  to  the  convention  for  the 
peaceful  settlement  of  international  disputes  was  no  small 
triumph  in  itself;  to  have  secured  the  unanimous  recognition 
of  the  principle  of  obligatory  arbitration,  and  to  have  laid  the 
foundations  broad  and  deep  of  two  great  courts  of  international 
justice,  are  events  of  international  importance  and  mark  an 
era  in  the  world  of  progress. 

7.  The  Work  of  the  Second  Commission 

To  the  Second  Commission  were  assigned  the  matters  per- 
taining to  land  warfare,  for  example, 


132 


THE  HAGUE  PEACE  CONEERENCE8 


improvements  in  the  system  of  the  laws  and  customs  of  land 
warfare,  opening  of  hostilities,  declarations  of  1899  relating 
thereto,  and  rights  and  obligations  of  neutrals  on  land. 

The  commission  divided  itself  into  two  sub-commissions, 
the  first  of  which  under  M.  Beemaert  dealt  with  the  subjects 
of  the  revision  of  the  convention  concerning  the  laws  and 
customs  of  land  warfare  and  the  declarations  of  1899.  The 
Second  Sub-Commission,  under  the  presidency  of  M.  Asser, 
considered  the  opening  of  hostilities  and  the  project  of  a con- 
vention to  regulate  the  rights  and  duties  of  neutral  States  and 
persons  in  land  warfare.  As  these  subjects  are  highly  technical 
in  their  nature  and  do  not  lend  themselves  to  general  treat- 
ment, they  are  reserved  for  subsequent  consideration;  but  it 
should  be  said  that  the  convention  of  1899  concerning  land 
warfare  was  revised  in  much  the  same  way  as  the  First  Com- 
mission revised  the  convention  for  the  peaceful  settlement  of 
international  disputes;  that  the  declaration  of  1899  prohibiting 
the  throwing  of  projectiles  from  balloons  was  renewed  and 
instead  of  being  limited  to  a period  of  five  years  is  continued 
in  effect  until  the  close  of  the  Third  Conference. 

The  Second  Sub-Commission  reported  and  framed  a conven- 
tion concerning  the  opening  of  hostilities,  by  which  the  powers 
bound  themselves  not  to  engage  in  warfare  without  a declara- 
tion of  intention,  and  freeing  neutrals  from  the  observance  of 
neutral  obligations,  unless  and  until  they  received  notice 
directly  or  indirectly  of  the  existence  of  war  or  hostilities;  and, 
finally,  a convention — a mere  fragment,  it  must  be  admitted — 
regulating  the  rights  and  duties  of  neutral  States  and  persons 
in  land  warfare. 

The  Conference  has  been  much  criticised  for  devoting  so 
large  a part  of  its  time  to  war,  but  as  war  is  likely  to  occur  in 
the  future,  as  it  has  in  the  past,  it  is  certainly  a wise  task  and 
not  unbecoming  an  international  conference,  to  humanize,  as 
far  as  possible,  the  rules  and  customs  of  war,  while  creating, 
at  one  and  the  same  time,  an  acceptable  substitute  for  force. 
The  answer  to  the  objection  has  already  been  made;  for  exam- 


GENERAL  SURVEY  OP  THE  SECOND  PEACE  CONFERENCE  133 


pie,  M.  Beemaert,  in  opening  the  First  Commission,  quoted  his 
friend  M.  Arthur  Desjardins  as  saying 

Even  yesterday  a military  chieftain  might  say  “ What  is  the 
law  of  nations?  A mass  of  rules,  locked  up  in  the  head  of  jurists. 
I do  not  recognize  their  force.’*  Today,  we  may  reply,  these 
rules  have  been  sanctioned  by  your  own  Government,  which  is 
henceforth  bound  by  its  signature.  They  must  be  obeyed. 

To  have  corrected,  even  in  a measure,  the  hardships  incident 
to  war;  to  have  eliminated  doubt  and  introduced  certainty;  to 
have  imposed  a restraint  upon  the  rights  of  the  conqueror,  and 
to  have  protected  the  vanquished  in  life  and  property — are 
results  of  which  we  may  well  be  proud. 

8.  Work  of  the  Third  Commission 

The  Third  Commission  dealt  with  the  problems  of  naval 
warfare  and  by  a series  of  carefully  considered  conventions 
added  materially  to  the  progress  of  international  law.  Count 
Tomielli,  first  delegate  of  Italy,  was  the  president  of  the 
commission,  and  upon  his  motion  it  was  divided  into  two  sec- 
tions, the  first  under  the  presidency  of  M.  Hagerup,  dealing 
with  the  bombardment  of  ports,  cities,  and  villages  by  a naval 
force,  and  the  laying  of  torpedoes;  and  the  second,  under  the 
presidency  of  Count  Tornielli  himself,  dealing  with  the  rules 
to  which  the  vessels  of  belligerents  in  neutral  ports  should  be 
subjected,  and  the  additions  to  be  made  to  the  conventions 
of  1899  in  order  to  adapt  to  maritime  warfare  the  principles  of 
the  Geneva  Convention  of  1864  as  revised  at  Geneva  in  1906. 
As  in  the  case  of  the  conventions  concerning  land  warfare,  the 
various  conventions  of  the  Third  Commission  concerning  naval 
warfare  are  technical  and  it  is  sufficient  to  say  in  passing, 
leaving  the  details  for  subsequent  consideration,  that  satisfac- 
tory conclusions  were  reached  in  each  subject  figuring  in  the 
program  of  the  Third  Commission,  by  which  bombardment 
of  undefended  ports,  cities,  and  villages  was  forbidden;  that 
submarine  mines  should  be  laid  in  such  a way  as  to  be  harm- 
less when  broken  from  their  moorings;  that  satisfactory,  if  not 


134 


THE  HAGUE  PEACE  CONFERENCES 


model  rules  and  regulations  were  devised  concerning  the 
sojourn  and  conduct  of  belligerent  vessels  in  neutral  ports, 
and  an  admirable  convention,  humanitarian  in  origin  and  in  all 
its  details,  was  approved,  extending  to  maritime  warfare  the 
beneficent  principles  of  the  various  Geneva  conventions.  It 
was  with  great  difficulty  that  conventions  were  concluded 
concerning  the  laying  of  mines  and  torpedoes,  and  the  sojourn 
of  belligerent  vessels  in  neutral  ports,  and  the  fortunate 
result  must  be  ascribed  in  large  measure  to  the  personal 
interest  and  persistence  of  Count  Tornielli  both  in  and  out 
of  the  commission.  It  is  evident  from  this  statement  that 
the  conventions  cover  but  a small  part  of  a large  field,  and  that 
many  of  the  provisions  are  compromises  of  clashing  and 
seemingly  irreconcilable  views;  but  a step  in  advance  is  still 
an  advance,  and  we  must  not  reject  the  minimum  solely 
because  it  is  not  the  maximum  of  our  desires. 

9.  The  Fourth  Commission 

The  Fourth  Commission  makes  but  a sorry  comparison  with 
the  Second  and  Third.  Its  positive  results  in  conventional 
form  were  far  from  satisfactory,  and  its  failures  were  even  more 
marked  than  its  partial  successes.  The  comparative  failure 
of  the  commission  must  not,  however,  be  attributed  to  a lack 
of  desire  or  energy  on  the  part  of  its  honored  president,  M. 
de  Martens ; for  he  brought  to  the  Conference  an  authority 
second  to  none  in  the  entire  domain  of  international  law,  and 
years  of  experience  as  a trusted  adviser  of  his  Government  had 
given  him  practical  experience  with  the  problems  assigned  to 
his  commission.  In  the  Conference  of  1899  he  had  a large 
share  in  framing  the  convention  for  the  pacific  settlement  of 
international  differences,  and  as  president  of  the  Second  Com- 
mission charged  with  the  laws  and  customs  of  land  warfare, 
he  labored  with  M.  Beernaert  and  M.  Bourgeois  to  bring  about 
the  convention  concerning  the  laws  and  customs  of  land  war- 
fare, which  M.  Desjardins  rightly  considered  a veritable  monu- 
ment to  progress  and  humanity.  The  unsatisfactory  result  of 


GENERAL  SURVEY  OF  THE  SECOND  PEACE  CONFERENCE  135 


the  labors  of  the  commission  must,  therefore,  be  ascribed  to 
the  fact  that  the  subjects  were  difficult  in  themselves  and  the 
conflicting  and  divergent  views  were  beyond  the  scope  of  com- 
promise. Some  of  the  questions  have  perplexed  successive 
generations  without  finding  a satisfactory  solution;  for  exam- 
ple, the  immunity  of  unoffending  enemy  property  upon  the 
high  seas,  a favorite  dogma,  though  never  the  practice  of  the 
United  States;  and  the  little  convention  actually  adopted 
exempting  mail,  inshore  fishermen,  and  small  coastal  vessels 
from  capture,  is  but  an  infinitesimal  recognition  of  a great 
principle.  The  elimination  of  the  place  of  transformation  of 
merchant  vessels  into  war  vessels  deprives  the  convention 
respecting  transformation  of  merchant  vessels  of  any  great 
value,  and  the  convention  relating  to  the  status  of  enemy 
merchant  ships  at  the  outbreak  of  hostilities  is  a distinct  re- 
treat by  reducing  that  to  a privilege  which  has  hitherto  had 
the  sanction  of  enlightened  practice  and  custom. 

The  failure  of  the  commission  to  reach  acceptable  conclu- 
sions on  the  subjects  of  contraband,  blockade,  and  the  de- 
struction of  neutral  prizes  is  unfortunate,  although  it  was 
foreseen  in  advance  that  agreement  would  be  difficult 
because  of  the  radical  differences  of  writers  of  authority  and 
the  practice  of  States.  The  failure  is  none  the  less  unfor- 
tunate and  discouraging.  The  same  is  true  of  the  provi- 
sions regarding  land  warfare  applicable  to  naval  warfare. 
Taken  as  a whole,  these  subjects  show  the  difficulty  of  reaching 
international  agreement  when  material  interests  of  the  States 
intervene.  It  is  well-nigh  impossible  to  secure  international  re- 
cognition of  national  interests,  and  instead  of  endeavoring  at 
an  international  conference  to  obtain  recognition  of  national  in- 
terest and  practice,  a State  should  rather  determine  in  advance 
what  it  may  sacrifice  in  the  interest  of  all,  rather  than  to  strug- 
gle to  obtain  by  discussion  and  compromise  a national  advan- 
tage at  the  expense  of  international  well-being.  As  was 
pointed  out  by  Lord  Mansfield,  it  is  much  better  that  a rule  be 
certain,  and  that  it  be  known,  rather  than  that  it  be  intrinsic- 
ally right,  and  it  is  more  in  the  interest  of  the  neutral  as  well 


136 


THE  HAGUE  PEACE  CONFERENCES 


as  of  the  belligerent  that  its  rights  and  duties  be  ascertained 
and  certain  in  advance  of  hostilities,  rather  than  that  any  par- 
ticular precedent,  be  it  continental  or  Anglo-American,  be 
adopted. 

The  labors  of  the  Fourth  Commission,  however,  were  not  in 
vain,  for  they  will  be  of  advantage  to  a third  conference,  and 
indeed  the  failure  of  the  Second  Conference  to  reach  positive 
conclusions  makes  the  convocation  of  a future  conference  well- 
nigh  a necessity.  The  recommendation  of  the  commission 
and  of  the  Second  Conference  that  “the  preparation  of  regula- 
tions relative  to  the  laws  and  customs  of  naval  war  should 
figure  in  the  program  of  the  next  conference”  is  not  an  empty 
hope  or  desire,  because  experience  shows  that  the  vomx  of 
one  conference  are  the  conventions  of  its  successor. 

Such  is,  in  brief,  an  outline  of  the  positive  results  of  the 
labor  of  the  various  commissions.  There  are,  however,  two 
matters  mentioned  in  the  Final  Act  which  were  not  discussed 
in  commission,  but  which,  however,  are  of  great  importance. 
The  first  is  the  action  of  the  Conference  reaffirming  the  resolu- 
tion adopted  by  the  Conference  of  1899  in  regard  to  the  limi- 
tation of  military  expenditure ; and  the  second  is  the  recom- 
mendation that  a third  conference  be  held  “within  a period 
corresponding  to  that  which  has  elapsed  since  the  preceding 
conference,”  and  that  the  program,  organization,  and  proce- 
dure for  the  future  conference  be  determined  in  advance  of  its 
meeting.  As  these  matters  will  be  fully  considered  later,  it 
is  only  necessary  in  this  place  to  indicate  their  importance 
without  discussing  their  details. 

9.  The  Nature  of  Conventions,  Declarations,  Resolu- 
tions, Recommendations  or  Voeux 

The  positive  results  of  the  Second  Conference  appear  in  the 
Final  Act  in  the  form  of  thirteen  conventions,  a signed  and 
unsigned  declaration,  a resolution  and  five  voeux,  of  which  the 
first  and  last — the  establishment  of  the  court  of  arbitral 
justice  and  the  meeting  of  a third  conference — are  recommen- 


GENERAL  SURVEY  OF  THE  SECOND  PEACE  CONFERENCE  137 


dations  adopted  after  profound  discussion  and  deliberation. 
The  conventions  and  signed  declaration  on  balloons  are  con- 
tracts entered  into  by  independent  nations  by  which  they 
mutually  pledge  themselves  to  do  or  not  to  do  certain  specified 
things.  The  unsigned  declaration  on  arbitration  proclaims 
the  principle  of  compulsory  arbitration  and  in  so  far  establishes 
it.  The  resolution  on  the  limitation  of  armaments  is  less 
formal  than  a declaration,  but  is  nevertheless  a finding  or 
expression  of  the  opinion  of  the  Conference  in  concrete  form 
on  the  point  in  question.  These  three  forms  are,  however, 
regarded  as  complete  and  binding  in  themselves,  in  that  they 
express  a definite  conclusion  irrespective  of  future  action  by 
the  powers  upon  their  ratification. 

The  last  class,  technically  termed  “voeux”  do  not  create 
a legal  obligation  as  is  the  case  with  the  convention  and 
signed  declaration;  nor  do  they  declare  the  existence  of  a 
principle  as  the  declaration,  nor  the  acceptance  of  a principle 
as  is  the  case  with  a resolution.  The  voeu  expresses  a hope, 
a desire,  a wish  on  the  part  of  the  Conference  that  something 
be  done  in  the  future  which  the  Conference  was  unable  to  do. 
From  this  standpoint  the  voeu  is,  in  simplest  terms,  a confes- 
sion of  failure  to  agree  upon  a convention,  a declaration  or  a 
resolution;  but  the  subject-matter  of  the  voeu  is  considered  so 
important  that  the  Conference  expresses  the  opinion  that  it  is 
advisable  and  expedient,  and  its  hope  and  desire  that  it  be  done. 

The  dividing  line  between  a declaration  and  resolution  on 
the  one  hand  and  the  voeu  on  the  other  is  thus  very  slight,  and 
the  voeu  may  in  reality  be  a declaration  or  resolution  even 
although  it  be  included  in  the  less  formal  and  supposedly 
inferior  category.  This  is  especially  the  case  with  the  voeux 
complete  in  themselves  and  which  recommend  that  the  powers 
by  diplomatic  action  give  full  effect  to  the  opinion  expressed 
by  the  Conference.  For  example,  the  voeu  dealing  with  the 
court  of  arbitral  justice  recommends  that  the  powers  establish 
the  court  upon  the  basis  of  the  project  of  a convention  adopted 
by  the  Conference  as  the  result  of  prolonged  discussion. 
Indeed,  the  project  was  voted  as  a Declaration,  but  owing  to 


188 


THE  HAGUE  PEACE  CONFERENCES 


the  opposition  of  Belgium,  Roumania  and  Switzerland  that  it 
take  this  form  in  the  Final  Act,  and  the  feeling  freely  expressed  in 
the  Conference  that  a declaration  could  not  be  included  in  the 
Final  Act  against  the  expressed  opposition  of  a single  power, 
it  was  finally  agreed  that  it  figure  in  the  Final  Act  as  a voeu. 
The  three  powers  agreed  to  withdraw  their  opposition  on  this 
condition,  and,  while  they  remained  opposed  to  the  project, 
they  abstained  from  voting  against  the  voeu  and  its  insertion 
as  such  in  the  Final  Act  of  the  Conference.  The  difference  would 
seem  to  be  one  of  form,  for  whether  as  declaration,  resolution  or 
simple  voeu  it  goes  forth  to  the  world,  not  only  with  the  ap- 
proval of  the  Conference  but  with  its  recommendation  that  the 
court  be  established  as  soon  as  the  powers  agree  upon  the 
appointment  of  judges  and  the  composition  of  the  court. 

In  the  next  place  the  voeu  concerning  the  meeting  of  a third 
conference  is  in  reality  a resolution,  for  it  recommends  that  a 
future  conference  “be  held  within  a period  corresponding  to 
that  which  has  elapsed  since  the  preceding  Conference.”  This 
is  an  expression  of  opinion  based  upon  a resolution  of  the  Con- 
ference that  such  a Conference  should  meet. 

The  second,  third  and  fourth  voeux  express  the  opinion  that 
the  powers  should  in  case  of  war  safeguard  the  maintenance  of 
pacific  relations,  more  especially  of  the  commercial  and  indus- 
trial relations  between  the  inhabitants  of  the  belligerent  States 
and  neutral  countries  (No.  2);  that  the  powers  regulate  by 
special  treaties  the  position  “as  regards  military  charges  of 
foreigners  residing  within  their  territories”  (No.  3);  that 
the  codification  of  the  laws  and  customs  of  naval  war  should 
figure  in  the  program  of  the  next  conference,  and  that  in 
any  case  the  Powers  may  apply,  as  far  as  possible,  to  “ war  by 
sea  the  principles  of  the  convention  relative  to  the  laws  and 
customs  of  war  on  land”  (No.  4). 

The  difference  between  these  two  classes  of  voeu  is,  that  in 
the  first,  the  Conference  recommends  for  adoption  a certain 
carefully  devised  plan,  whereas  in  the  latter  it  expresses  the 
opinion  that  the  Powers  should  by  diplomatic  negotiation 
define  and  regulate  the  status  of  certain  classes  and  property, 


GENERAL  SURVEY  OP  THE  SECOND  PEACE  CONFERENCE  139 

and  that  the  laws  and  customs  of  naval  warfare  be  included 
in  the  program  of  and  be  codified  by  the  next  conference. 

However  subtle  the  distinction  between  an  unsigned  decla- 
ration, resolution,  and  voeu,  the  fact  is  that  they  all  figure 
among  the  positive  results  of  the  Conference,  and,  by  incor- 
poration in  the  Final  Act,  are  permanently  preserved  and  sent 
forth  with  the  approval  of  the  Conference. 

Without  venturing  a positive  opinion  on  a subject  which 
troubled  the  Conference  and  which  was  not  resolved  by  it, 
it  seems  that  the  distinction,  however  shadowy  and  subtle  in 
some  respects,  is  sufficiently  clear  and  definite.  The  proceed- 
ings of  the  Conference  are  divisible  into  two  classes:  (1)  Acts 
of  the  Conference  signed  by  the  plenipotentiaries,  which 
presuppose  and  require  the  ratification  by  the  treaty-making 
power  of  the  participating  countries,  such  as  the  conventions 
and  the  signed  declaration;  when  so  ratified  these  conventions 
and  declarations  become  acts  of  the  various  nations  ratifying 
them  and  acquire  at  one  and  the  same  time  the  twofold  charac- 
ter of  national  laws  and  international  obligations.  (2)  The 
declaration,  resolution  and  voeu,  not  signed  individually  and 
separately  by  the  plenipotentiaries  and  which  neither  pre- 
suppose nor  require  ratification  by  the  treaty-making  power 
of  the  participating  countries.  However  important  and  com- 
plete in  themselves  they  are  imperfect  in  that  they  remain  acts 
of  the  Conference,  whether  they  declare  the  existence  of  a 
principle,  formulate  a resolution,  utter  an  opinion  and  recom- 
mend its  adoption  in  concrete  and  specific  form,  or  suggest  in 
general  terms  the  desirability  of  future  action  of  a more  or  less 
definite  nature  in  regard  to  certain  specified  subjects.  They 
do  not  create  a legal  obligation  as  in  the  case  of  the  conven- 
tions and  signed  declaration  perfected  by  subsequent  ratifi- 
cation; they  create  at  most  a moral  obligation  upon  the  powers 
to  secure  their  enactment  in  appropriate  form.  They  differ 
among  themselves  in  degree  notin  kind,  and  rank  according  to 
the  importance  of  the  subject,  the  completeness  of  the  project 
and  the  recommendation  attached  to  them.  In  a word,  the 
convention  or  signed  declaration  is  a law  proposed  to  the 


140 


THE  HAGUE  PEACE  CONFERENCES 


nations  for  ratification;  the  unsigned  act  is  a project  for  future 
consideration. 

10.  The  Closing  of  the  Conference 

The  Second  Conference  met  for  the  last  time  on  the  after- 
noon of  October  18,  1907,  at  which  time  several  formal  ad- 
dresses were  delivered.  Of  these,  two  will  be  noticed:  the 
address  of  the  president,  M.  de  Nelidow,  and  that  of  M.  van 
Tets  van  Goodriaan. 

M.  de  Nelidow  opened  his  address  with  a summary  account 
of  the  work  which  had  been  accomplished,  and,  in  speaking  of 
the  spirit  of  conciliation  which  made  possible  the  work  of  the 
commissions,  especially  that  of  the  Third  and  Fourth  Commis- 
sions, said: 

I shall  dwell  but  an  instant  on  the  spirit  of  concord  and  un- 
derstanding which  characterized  the  disposition  of  all  the  mem- 
bers of  these  commissions.  When  persons  unacquainted  with  our 
labors  judge  the  work  of  our  Conference,  they  too  often  lose 
sight  of  the  fact  that  we  are  not  called  upon  to  work  out  abstract 
theories,  or  to  seek  by  speculations  of  the  mind  ideal  solutions 
of  the  problems  submitted  to  us.  We  are  the  servants  of  our 
governments,  and  we  act  by  virtue  of  special  instructions  based 
primarily  on  the  interests  of  our  respective  countries.  The 
higher  considerations  of  the  welfare  of  humanity  in  general 
should  without  doubt  serve  as  guides  to  us  in  this,  but  we  can 
not  help  having  primarily  in  view  the  intentions  of  our  govern- 
ments when  carrying  these  instructions  out.  Now  the  direct 
interests  of  the  greatest  nations  are  often  diametrically  opposed. 
It  was  in  seeking  to  conciliate  them  and  to  bring  them  into 
accord  with  the  theoretical  requirements  of  absolute  law  and 
justice  that  the  spirit  of  understanding,  which  I have  just 
mentioned,  was  engaged,  and,  viewed  from  this  light,  it  acquires 
a double  value. 

Passing  from  the  summary  of  the  work  accomplished  by 
the  various  commissions  and  the  Conference,  he  continued: 

However,  it  is  not  here,  gentlemen,  that  the  chief  signifi- 
cance of  the  Second  Peace  Conference  lies,  in  my  opinion.  It 
can  not  be  denied  that  one  of  the  chief  guaranties  of  the  main- 
tenance of  peaceful  relations  among  peoples  is  a most  intimate 


GENEEAL  SUEVBY  OF  THE  SECOND  PEACE  CONFEKENCE  141 


knowledge  of  their  reciprocal  interests  and  needs,  the  establish- 
ment of  numerous  and  varied  relations,  which,  being  extended 
more  and  more,  finally  creates  among  them  a moral  and  mate- 
rial solidarity,  which  is  constantly  more  opposed  to  any  war- 
like enterprise.  The  present  Conference  has  accomplished  the 
greatest  progress  in  this  regard  that  humanity  has  ever  made. 
This  is  the  first  time  that  the  representatives  of  all  constituted 
governments  have  met  for  the  discussion  of  interests  which  are 
common  to  them  all,  and  which  tend  to  the  welfare  of  all  human- 
ity. Besides  this,  the  association  of  the  representatives  of 
Latin  America  in  our  labors  has  unquestionably  added  new 
and  very  valu5,ble  material  to  the  common  treasury  of  inter- 
national political  science,  the  value  of  which  material  was 
but  imperfectly  known  to  us  up  to  the  present.  The  represent- 
atives of  Central  and  South  America  have  had  occasion,  on 
the  other  hand,  to  become  better  acquainted  with  the  internal 
situation  and  the  reciprocal  relations  of  the  European  nations, 
which,  with  their  various  institutions,  historically  developed, 
and  their  traditions  and  individual  peculiarities  offer  political 
conditions  which  are  considerably  different  from  those  under 
which  the  young  peoples  of  the  new  world  live  and  progress. 
There  was  thus  an  advantage  on  both  sides  in  this  closer  ac- 
quaintance and  in  the  collaboration  to  which  the  Conference 
gave  rise  and  which  will  constitute  a real  progress  for  humanity. 

We  can,  therefore,  deny  the  charge  which  it  is  attempted  to 
make  against  us  by  claiming  that  we  have  done  nothing  for  the 
maintenance  of  peace  and  nothing  for  the  progress  of  human 
solidarity.  There  is  no  doubt  that  there  is  much  yet  to  be 
done  in  this  line.  The  peoples  must  be  educated  in  such  a way 
as  to  learn  to  appreciate  and  love  one  another  while  each  pre- 
serves its  peculiarities  and  the  traditions  which  are  dear  to  it. 

The  real  friends  of  peace  and  of  the  development  of  humanity 
in  the  direction  of  moral  solidarity,  of  right  and  of  justice,  will 
not  fail  to  devote  themselves  to  this  work  with  sincerity  and 
good  faith.  May  their  efforts  serve  to  counteract  the  pernicious 
effects  of  a certain  kind  of  publicity,  the  purpose  of  which  is 
only  to  excite  nations  against  one  another  for  selfish  purposes, 
stirring  up  hatred,  purposely  envenoming  the  slightest  political 
incidents,  and  creating  or  aggravating  thereby  the  dangers 
which  may  menace  the  peace  of  the  world,  for  the  maintenance 
of  which  we  are  called  upon  to  strive.* 

Before  concluding  his  address,  M.  de  Nelidow  expressed  his 
cordial  thanks  to  the  delegates  and  officers  of  the  Conference, 

* For  the  text  of  the  address,  see  La  Deuxi^me  Conference  Internationale 
de  la  Paix,  1907,  Actea  et  Documents,  Vol  I,  pp.  586-590. 


142 


THE  HAGUE  PEACE  CONFEKENCES 


and  proposed  a telegram  to  the  Queen  of  the  Netherlands 
expressing  the  gratitude  of  the  Conference,  and  also  the  tele- 
gram to  President  Roosevelt,  previously  quoted. ‘ 

The  Dutch  minister  for  Foreign  Affairs  then  closed  the  Con- 
ference with  a short  speech,  in  the  course  of  which  he  offered 
the  hospitality  of  The  Hague  to  the  next  Peace  Conference,  and 
expressed  appreciation  for  the  selection  of  The  Hague  as  the 
regular  and  permanent  headquarters  of  the  peace  conferences. 
He  concluded  his  address  by  proposing  the  following  telegram 
to  the  Emperor  of  Russia: 

The  Second  Peace  Conference,  at  its  closing  session,  very 
respectfully  expresses  its  deep  gratitude  to  the  august  initiator 
and  promoter  of  the  humanitarian  work  of  peace  on  which  it 
has  labored  under  the  presidency  of  Your  Majesty’s  represent- 
ative. 

The  Second  Conference  has  passed  into  history,  and  we 
already  hear  the  advance  guard  of  posterity  proclaiming  on 
the  one  hand  that  it  was  a failure,  and  on  the  other  that  it  was 
a success.  Thirteen  international  conventions,  a signed  decla- 
ration, a declaration  and  resolution,  and  five  recommendations, 
including  the  important  one  that  a third  conference  be  held, 
can  not  be  considered  as  evidences  of  failure.  It  may  be 
admitted  that  the  Conference  did  not  fulfill  the  expectations  of 
the  layman  and  enthusiast;  but  that  it  was  in  any  sense  a 
failure,  that  it  was  unworthy  of  its  predecessor,  that  it  is 
unworthy  of  a successor,  can  not  be  admitted  for  a moment. 
The  mere  fact  that  the  representatives  of  all  the  civilized 
nations  of  the  world  could  meet  at  one  and  the  same  time 
within  the  four  walls  of  one  and  the  same  room,  and  for  the 
period  of  four  months  exchange  views,  reconcile  differences, 
discuss  questions  of  grave  international  concern,  and  recom- 
mend to  their  respective  governments  conventions  of  great 
and  fundamental  importance,  would  alone  justify  the  call  and 
point  to  the  dawning  of  a new  and  brighter  day. 


'See  p.  111. 


GENERAL  SURVEY  OF  THE  SECOND  PEACE  CONFERENCE  143 


The  deliberate  judgment  of  our  honored  Mr.  Elihu  Root, 
Secretary  of  State,  will  probably  be  the  verdict  of  posterity: 

The  work  of  the  Second  Hague  Conference,  presents  the  great- 
est advance  ever  made  at  any  single  time  toward  the  reasonable 
and  peaceful  regulation  of  international  conduct,  unless  it  be  the 
advance  made  at  The  Hague  Conference  of  1899. 

The  most  valuable  result  of  the  Conference  of  1899  was 
that  it  made  the  work  of  the  Conference  of  1907  possible.  The 
achievements  of  the  conferences  justify  the  belief  that  the 
world  has  entered  upon  an  orderly  process  through  which,  step 
by  step,  in  successive  conferences,  each  taking  the  work  of  its 
predecessor  as  its  point  of  departure,  there  may  be  continual 
progress  toward  making  the  practice  of  civilized  nations  conform 
to  their  peaceful  professions. 


CHAPTER  IV 


THE  COMPOSITION  OF  THE  CONFERENCE 

1.  The  Personnel  of  the  Delegates 

Before  passing  to  the  detailed  consideration  of  the  various 
conventions  concluded  at  the  conferences  at  The  Hague,  it 
may  be  well  to  consider  the  principle  of  representation,  the 
classification  of  the  delegates,  the  personnel  of  some  of  the 
important  delegations,  the  influence  of  the  delegations  upon 
the  Conference,  based  upon  the  standing  of  the  country  in  the 
world  at  large  and  the  impression  produced  by  its  delegates 
at  the  Conference  upon  the  progress  of  the  work.  And,  in  the 
next  place,  it  may  likewise  be  not  without  interest  to  sketch 
the  unofficial  life  of  the  delegate,  in  order  that  the  Conference 
at  The  Hague  may  become,  at  least  in  some  measure,  a living 
reality. 

An  examination  of  the  program  submitted  for  the  consid- 
eration of  the  First  Conference  determines,  in  large  measure, 
the  qualifications  necessary  for  successful  work  at  the  Confer- 
ence; for  it  will  be  recalled  that  the  program  concerned 
matters  dealing  with  land  and  naval  warfare,  and  that  Article 
8 dealt  with  the  various  means  by  which  international 
difficulties  might  be  settled  by  peaceful  means  and  war  averted. 
For  adequate  consideration  of  land  and  naval  warfare,  tech- 
nical delegates  would  be  indispensable,  because  the  laymen, 
however  willing  and  however  open-minded,  could  not,  without 
excessive  application,  understand  the  necessary  technical  de- 
tails, and  could  not,  without  great  difficulty,  choose  properly 
between  the  various  projects  submitted. 

A humanitarian  principle  is  easily  recognized  and  appreci- 
ated by  all,  but  the  means  by  which  this  humanitarian  princi- 
ple may  be  applied  in  warfare  on  land  and  sea  so  as  not  to 


144 


THE  COMPOSITION  OF  THE  CONFERENCE 


145 


obstruct  hostilities,  and  thus  fail  of  application,  can  best  be 
appreciated  by  those  experienced  in  such  matters.  There- 
fore, each  of  the  larger  States  represented  at  the  Conference 
selected  a military  delegate  and  a naval  delegate,  who,  under- 
standing the  subject  in  its  technical  details,  both  at  home  and 
abroad,  could  thus  speak  with  authority,  and  forecast  the 
probable  effect  of  the  regulation  proposed  upon  the  organi- 
zation of  the  home  country. 

In  the  next  place,  it  was  equally  desirable  to  have  present 
at  the  conference  delegates  familiar  with  the  origin  and  history 
of  arbitration,  because  arbitration  had  come  to  be  recog- 
nized as  the  favorite  means  of  adjusting  international  contro- 
versies susceptible  of  judicial  treatment.  Therefore,  delegates 
familiar  with  international  law,  and,  if  possible,  familiar 
with  the  practical  conduct  of  arbitration,  would,  by  their 
presence  and  experience,  be  in  a position  to  suggest  proposals 
likely  to  meet  with  the  approval  of  practical  people,  because 
they  had  been  engaged  with  success  in  actual  controversies. 
If,  as  actually  happened,  an  arbitration  tribunal  was  to  be 
created,  the  practical  experience  of  those  who  had  served  as 
arbitrators  would  be  invaluable,  and,  in  drafting  procedure  for 
such  a tribunal,  no  safer  guide  could  be  found  than  the  rules 
and  regulations  previously  adopted  and  found  serviceable. 
The  experience  of  those  who  framed  the  rules  and  applied 
them  would  naturally  be  determinative.  Therefore,  profes- 
sors of  international  law  and  jurists  of  experience  in  arbitra- 
tion, were  selected  and  appointed  by  the  various  States. 

And,  finally,  the  very  nature  of  the  Conference  itself,  a 
diplomatic  assemblage  in  which  negotiation  plays  a leading 
role,  necessitated  the  presence  of  diplomats  by  profession, 
in  whose  judgment,  abilitjq  and  character  the  Conference  could 
place  implicit  confidence.  Such  would  seem  to  be,  in  general, 
the  requirements  imposed  by  theory,  and  such  was,  in  fact, 
the  actual  character  of  the  delegates.  The  personnel  of  a few 
of  the  delegations  of  the  First  and  later  of  the  Second  Con- 
ference will  be  mentioned,  in  order  to  show  the  exact  nature  of 
their  composition. 


146 


THE  HAGUE  PEACE  CONFERENCES 


The  German  delegation  was  composed  of  Count  Munster,  a 
trained  and  experienced  diplomat,  and,  at  the  time  of  his 
appointment.  Ambassador  of  Germany  to  France;  Baron  von 
Stengel,  professor  at  the  University  of  Munich,  second  delegate ; 
Dr.  Zorn,  professor  at  the  University  of  Konigsberg,  and 
later  at  Bonn,  scientific  delegate;  Colonel  Gross  von  Schwartz- 
hoff,  military  expert;  and  Captain  Siegel,  Naval  Attache  of  the 
German  Embassy  at  Paris,  naval  delegate.  Of  this  personnel 
as  a whole.  Dr.  Andrew  D.  White  has  said  in  his  interesting 
Autobiography,  so  frequently  quoted: 

It  forms  a really  fine  body,  its  head  being  Count  Munster, 
whom  I have  already  found  very  agreeable  at  Berlin  and  Paris, 
and  its  main  authority  in  the  law  of  nations  being  Professor 
Zorn,  of  the  University  of  Konigsberg;  but,  curiously  enough, 
as  if  by  a whim,  the  next  man  on  its  list  is  Professor  Baron  von 
Stengel  b of  Munich,  who  has  written  a book  against  arbitration; 
and  next  to  him  comes  Colonel  Schwartzhoff,  said  to  be  a man 
of  remarkable  ability  in  military  matters,  but  strongly  preju- 
diced against  the  Russian  proposals.* 

Austria-Hungary  was  represented  by  Count  Welsersheimb, 
a man  of  large  diplomatic  experience;  M.  Gaetan  Merey  de 
Kapos-Mere,  assistant  delegate,  who,  as  first  delegate  at  the 
Second  Conference,  greatly  distinguished  himself;  and  Dr. 
Henri  Lammasch,  professor  at  the  University  of  Vienna, 
assistant  delegate,  who  won  the  confidence  and  esteem  of  both 
conferences,  and  contributed  materially  to  the  results  of  each. 

Belgium  was  represented  by  M.  Auguste  Beernaert,  Presi- 
dent of  the  House  of  Representatives,  who,  as  president  of 

‘In  the  course  of  the  evening  one  of  my  European  colleagues,  who  is 
especially  familiar  with  the  inner  history  of  the  calling  of  the  conference, 
told  me  that  the  reason  why  Professor  Stengel  was  made  a delegate  was  not 
that  he  wrote  the  book  in  praise  of  war  and  depreciating  arbitration,  which 
caused  his  appointment  to  be  so  unfavorably  commented  upon,  but  because, 
as  an  eminent  professor  of  international  law,  he  represented  Bavaria;  and 
that  as  Bavaria,  though  represented  at  St.  Petersburg,  was  not  invited, 
it  was  thought  very  essential  that  a well  known  man  from  that  kingdom 
should  be  put  into  the  general  German  delegation. — Dr.  White  in  his  Auto- 
biography, Vol.  II,  p.  284. 

‘ Ibid.,  p.  259. 


THE  COMPOSITION  OF  THE  CONFERENCE 


147 


the  First  Commission  in  the  First  Conference,  and  as  presi- 
dent of  the  Second  Commission  in  the  Second  Conference,  con- 
tributed materially  to  the  success  of  the  conferences;  and  M. 
Descamps,  Senator,  who,  as  an  expert  in  arbitration,  and 
as  reporter  of  the  Third  Commission,  to  which  Article  8 of  the 
program  was  referred,  rendered  services  of  the  greatest  value. 

The  American  delegation  was  composed  of  Dr.  Andrew  D. 
White,  American  Ambassador  at  Berlin;  Mr.  Seth  Low,  Presi- 
dent of  Columbia  University,  a gentleman  of  large  educational 
and  political  experience ; Mr.  Stanford  Newel,  American  Minister 
to  The  Hague ; Captain  Alfred  T.  Mahan,  naval  delegate,  whose 
experiences  in  the  Navy,  in  war  as  well  as  in  peace,  technically 
qualified  him  for  the  position,  and  whose  works  upon  naval 
warfare  are  among  the  masterpieces  of  the  century;  Captain 
Crozier,  military  delegate,  whose  career  at  The  Hague  marked 
him  for  the  promotion  with  which  he  was  rewarded ; and  Mr. 
Frederick  W.  Holls,  delegate  and  secretary  of  the  delegation, 
whose  experience  as  a lawyer,  interest  in  arbitration,  and 
profound  ability,  made  him  at  once  a power  in  the  Conference, 
and  whose  role  was  hardly  second  to  that  of  any  in  producing 
the  Convention  for  the  Peaceful  Adjustment  of  International 
Difficulties.  It  is  a source  of  pride  to  note  the  respect  in 
which  Mr.  Holls  was  regarded  by  his  colleagues  of  the  First 
Conference,  and  that  his  memory  was  cherished  as  a precious 
tradition  by  the  members  of  the  Second  Conference.  The 
adopted  son  of  the  great  Republic  shed  a luster  upon  it  vouch- 
safed to  few  in  so  short  and  busy  a life. 

Of  the  French  delegation,  the  following  may  be  mentioned: 
M.  L6on  Bourgeois,  former  Prime  Minister  and  Minister  of 
Foreign  Affairs,  former  President  of  the  Chamber  of  Deputies; 
Baron  d’Estoumelles  de  Constant,  member  of  the  Chamber 
of  Deputies  and  constant  friend  and  promoter  of  arbitration, 
whose  kindliness  and  courtesy,  as  well  as  linguistic  ability, 
enabled  him  to  perform  great,  indeed  invaluable  services; 
and  Professor  Louis  Renault,  professor  in  the  Paris  Law 
School,  legal  adviser  to  the  Ministry  of  Foreign  Affairs,  whose 
wide  knowledge  of  international  law,  and  technical  familiarity 


148 


THE  HAGUE  PEACE  CONFERENCES 


with  all  branches  of  public  law  made  him  a safe  and  sure  guide 
in  the  Conference  and  in  the  smaller  committees  charged 
with  the  preparation  of  important  documents. 

The  British  delegation  was  headed,  and  the  Conference  was 
at  times  dominated,  by  Sir  Julian  Pauncefote,  to  whom  in 
large  measure  is  due  the  creation  of  the  Permanent  Court.  He 
was  admirably  seconded  in  the  naval  and  military  sections 
of  the  program  by  Admiral  Sir  John  A.  Fisher,  naval  delegate, 
and  by  General  Sir  J.  C.  Ardagh,  military  delegate. 

The  Italian  delegation  was  represented  by  Count  Nigra, 
the  Italian  Ambassador  at  Vienna  and  Senator  of  the  Kingdom, 
once  the  private  secretary  of  Cavour,  and  whose  diplomatic 
services  in  France  during  the  regime  of  Napoleon  III,  counted 
for  much  in  the  unification  of  Italy. 

Holland  was  admirably  represented  by  Jonkheer  Van  Kar- 
nebeek,  former  Minister  of  Foreign  Affairs,  Vice-President  of 
the  Conference,  whose  services  as  reporter  and  intermediary 
were  of  great  and  permanent  value.  M.  Asser  brought  to 
the  Conference  a trained  knowledge  in  private  and  public 
international  law,  and  his  experience  as  arbiter  in  interna- 
tional controversies  enabled  him  to  speak  with  authority  on 
these  subjects. 

Russia,  as  was  expected,  was  strongly  represented : its  first 
delegate,  Baron  de  Staal,  Ambassador  to  the  Court  of  St. 
James,  was  not  only  first  delegate  of  his  country,  but  Presi- 
dent of  the  Conference,  and  although  inexperienced  in  par- 
liamentary procedure,  his  large  experience  in  public  affairs, 
his  geniune  interest  in  and  sympathy  with  the  aims  of  the  Con- 
ference, and  his  kindly  demeanor,  endeared  him  to  his  col- 
leagues and  earned  him  the  sobriquet  of  “ Father”  Staal;  M. de 
Martens,  well  known  as  an  author  of  a great  and  comprehen- 
sive treatise  on  international  law,  whose  experience  and  ability 
in  matters  of  arbitration  has  caused  him  to  be  called  the  “ Chief 
Justice  of  Christendom;”  Colonel  Gilinsky,  military  delegate, 
upon  whom  devolved  the  burden  and  the  privilege  of  explain- 
ing and  defending  the  military  proposals  of  Russia;  and 
Captain  Scheine,  naval  delegate,  specially  charged  with  the 


THE  COMPOSITION  OF  THE  CONFERENCE 


149 


conduct  of  the  naval  proposals.  The  delegation  likewise  in- 
cluded M.  Ovtchinnikow,  Professor  of  Jurisprudence,  whose 
services  as  technical  delegate  were  placed  at  the  disposal 
of  the  Conference. 

Each  power  was  left  absolute  liberty  both  as  to  the  qualifi- 
cations as  well  as  to  the  number  of  delegates  chosen  by  it  to 
attend  the  Conference,  and  while  each  State  invited  to  the 
Conference  possessed  but  a single  vote,  the  size  of  the  delega- 
tion depended  somewhat  either  upon  the  real  or  fancied  impor- 
tance of  the  power,  and  the  interest  it  took  or  might  seem  to 
take  in  the  success  of  the  Conference.  Thus,  Montenegro  was 
represented  by  Russia,  and  Greece  sent  one  delegate ; Bulgaria, 
Denmark,  Luxemburg,  Mexico  and  Persia,  two;  Belgium, 
Roumania,  Servia  and  Switzerland,  three;  China,  Siam  and 
Turkey,  four;  Germany,  Great  Britain,  Holland,  Italy,  Japan, 
Portugal,  Sweden  and  Norway,  five;  Austria-Hungary, 
France  and  the  United  States,  six;  Russia,  eight.  The  large 
number  of  secretaries  (6)  attending  the  French  delegation 
was  justified,  not  merely  by  the  importance  of  France  and 
the  role  it  naturally  would  take,  but  by  the  fact  that  the 
language  of  the  Conference  being  French,  the  presence  of 
a number  of  capable  and  efficient  French  secretaries  would 
add  greatly  to  the  conduct  of  the  proceedings  and  the  accu- 
racy of  the  reports.  Russia  was  represented  by  eight 
delegates  and  five  secretaries,  the  largest  representation 
of  the  Conference,  but  this  number  could  not  be  considered 
excessive;  for  the  delegates  represented  Montenegro  as  well, 
and  the  duty  of  presenting  and  expoimding  the  Russian 
projects  made  it  seem  desirable  that  the  Russian  delegation 
should  be  equal,  intellectually  and  physically,  to  the  great  and 
self-imposed  burden  of  calling  and  directing  the  Conference.^ 

The  delegates  were  not  all  of  equal  rank.  The  plenipoten- 
tiaries represented  the  sovereignty  of  the  appointing  State, 
and  formed  what  may  be  called  the  first  or  highest  class.  The 

‘ For  the  names  of  the  Delegates,  see  Final  Act  of  First  Conference, 
Vol.  II,  pp.  63-77. 


150 


THE  HAGUE  PEACE  CONFERENCES 


States  were  likewise  unlimited  in  the  number  of  plenipoten- 
tiaries and  designated  one  or  more  in  accordance  with  what 
were  conceived  to  be  their  best  interests,  for  example:  Ger- 
many, China,  Greece,  Persia,  and  Sweden  and  Norway  con- 
tented themselves  with  one  plenipotentiary  each;  Austria- 
Hungary,  Denmark,  Great  Britain,  Japan,  Roumania,  Servia, 
Siam,  Switzerland,  and  Turkey,  each  selected  two;  both  of  the 
Mexican,  Luxemburg,  and  Belgian  delegates  were  plenipoten- 
tiaries; Belgium,  Spain,  Italy,  Portugal  and  Russia  had  each 
three  plenipotentiaries;  France  and  Holland,  four;  whereas  the 
United  States  of  America  appointed  five.  In  such  cases,  the 
delegates  were  known  as  the  first,  second,  third,  fourth  or 
fifth  delegates. 

The  second  class  of  delegates  consisted  of  the  military  and 
naval  experts,  and  the  experts  in  international  law,  known 
respectively  as  the  technical  and  scientific  delegates.  The 
scientific  delegates  were,  generally  speaking,  jurists  who  had 
already  distinguished  themselves  in  the  domain  of  international 
law.  Meurer,  in  his  elaborate  work  on  the  Peace  Conference, 
indicates  the  following  as  especially  distinguished: 

Zorn,  of  Germany;  Lammasch,  of  Austria;  Holls,  of  the 
United  States;  Renault,  of  France;  Veljkovitch,  of  Servia;  and 
Consul  General  Rolin,  of  Belgium.  In  this  class  of  scientific 
exponents  of  international  law  belong  likewise  the  plenipoten- 
tiaries de  Martens,  of  Russia,  Asser,  of  Holland,  and  Descamps, 
of  Belgium.  Among  the  military  delegates  the  following 
were  especially  prominent  in  the  later  proceedings:  Colonel 
Gross  von  Schwarzhoff,  of  Germany;  Lieutenant-Colonel  von 
Kuepech,  of  Austria;  Captain  Crozier,  of  America;  General 
Mounier,  of  France;  Major-General  John  Ardagh,  of  Great 
Britain;  Major-General  Zuccari,  of  Italy;  and  Colonel  Gilinsky, 
of  Russia.  To  this  class  also  belongs  the  plenipotentiary  den 
Beer  Portugael,  formerly  Dutch  Minister  of  War.  In  naval 
matters  the  following  naval  delegates  especially  distinguished 
themselves:  Captain  Siegel,  of  Germany;  Count  Soltyk,  of 
Austria-Hungary;  Rear-Admiral  Pephau,  of  France;  Vice-Ad- 
miral Fisher,  of  Great  Britain;  Captain  Tadema,  of  Holland;  and 
Captain  Scheine,  of  Russia.  In  this  group  Captain  Mahan,  pleni- 
potentiary of  the  United  States,  is  likewise  to  be  mentioned.^ 


* Meurer’s  Haager  Friedenskonfereni,  Vol.  I,  p.  23. 


THE  COMPOSITION  OF  THE  CONFERENCE 


151 


A third  group,  not  really  delegates,  was  composed  of  the 
secretaries  of  the  delegations.  Most  delegations  had  their 
own  secretaries;  Germany,  for  example,  had  one,  while  Austria- 
Hungarj'  had  four  assistant  delegates,  but  no  secretary.  The 
following  States  had  no  specially  appointed  secretaries : China 
(China  had,  however,  an  interpreter),  Mexico,  Luxemburg, 
Holland,  Roumania,  Servia  and  Bulgaria.  Attaches  or  minis- 
terial secretaries  with  the  duty  of  secretary  were  attached  to 
the  following  delegations;  Denmark,  Greece  and  Siam. 

It  is  thus  seen  that  while  the  invited  States  were  left  untram- 
meled in  the  choice  of  delegates,  and  while  no  limitation  was 
placed  either  upon  the  number  or  qualification  of  the  repre- 
sentatives chosen,  nevertheless  the  aim  and  purpose  of  the 
Conference,  as  well  as  experience  in  the  past,  imposed  limita- 
tions both  as  to  the  number  and  qualifications  of  the  delegates. 
Differing  in  numbers  and  in  experience,  the  States  were  repre- 
sented by  plenipotentiaries,  scientific  and  technical  delegates, 
and  secretaries,  who,  in  the  course  of  the  Conference,  repre- 
sented their  respective  countries  and  the  national  interests 
confided  to  them  with  remarkable  ability  and  success. 

The  late  Mr.  Holls,  in  his  admirable  account  of  the  First 
Conference,  characterizes  the  leading  delegates  as  he  had 
learned  to  know  them  at  The  Hague,  and  the  pleasure  of 
association,  in  the  following  happy  language; 

To  listen  to  the  diplomatic  wisdom  of  veteran  statesmen 
like  Baron  de  Staal,  Count  Nigra,  and  Lord  Pauncefote;  to 
hear  the  profoundest  problems  of  International  Law  debated 
thoroughly  and  most  brilliantly  by  authorities  like  De  Martens, 
Asser,  Descamps,  Lammasch,  and  Zorn;  to  observe  the  noble 
idealism  of  Baron  d’Estournelles,  the  sound  judgment  of  M. 
de  Basily  and  Jonkheer  van  Karnebeek,  and  the  unerring  pru- 
dence of  Switzerland’s  eflacient  representative,  M.  Odier, — and 
finally,  to  watch  the  perfection  of  decision  and  tact  in  the  firm 
but  most  amiable  management  of  all  these  various  elements 
by  the  chairman,  M.  Bourgeois, — all  this  would  in  itself  be  of 
sufficient  general  interest  to  deserve  an  enduring  record.  Un- 
fortunately, this  is  impossible,  for  in  the  absence  of  a steno- 
graphic report,  by  far  the  greater  and  better  part  of  the  debates — 
the  animated  discussions — are  necessarily  lost.  The  admirable 
proc^s-verbaux  of  Baron  d’Estouruelles  summarize  most  accu- 


152 


THE  HAGUE  PEACE  CONFEKENCES 


rately  the  action  taken,  as  well  as  many  of  the  speeches  made, 
and  they,  together  with  the  present  writer’s  own  recollections 
and  memoranda,  form  the  basis  of  most  of  the  narrative  which 
is  hereinafter  given,  under  the  appropriate  articled 

In  forming  an  estimate  of  the  personalities  of  the  First  Con- 
ference, I have  relied  principally  upon  the  notices  found  in 
Dr.  White’s  delightful  Autobiography,  and  Mr.  Holls’  author- 
itative volume  upon  the  Peace  Conference.  As  it  seems, 
advisable,  however,  to  view  the  Conference  through  conti- 
nental eyes,  I translate  and  quote  the  following  paragraphs  from 
Professor  Meurer’s  elaborate  work  on  the  First  Hague  Con- 
ference, which  has  already  been  laid  under  contribution: 

Even  the  secondary  Powers,  as  the  German  plenipotentiary 
Zorn  afterwards  publicly  remarked,  had  very  shrewd  and  intel- 
ligent representatives,  such  as  the  former  Belgian  Minister 
of  State  Beernaert,  and  the  Dutch  Councillor  of  State  (now 
Minister)  Asser,  the  former  of  whom  was  characterized  by  his 
devout  enthusiasm  for  right  and  the  latter  as  a sober-minded, 
acute,  practical  politician,  who  possessed  an  excellent  knowl- 
edge of  international  law  and  was  imbued  with  an  enthusiasm 
for  the  pacific  mission  of  international  law  similar  to  that  of 
the  honored  and  respected  Belgian  Descamps,  who  prepared 
the  celebrated  Memorial  to  the  Powers,  for  the  Brussels  Inter- 
parliamentary Conference  in  1895. 

The  “original  advocate  of  the  idea  of  peace,”  and,  so  to 
speak,  the  father  of  the  permanent  tribunal  of  arbitration,  was 
the  English  First  Plenipotentiary,  Sir  Julian  Pauncefote,  Am- 
bassador at  Washington. 

Pauncefote  had  already  played  a leading  role  twice  in 
the  history  of  the  peace  movement.  He  brought  about  the 
draft  of  the  English- American  arbitration  treaty  in  1897.  This 
was  the  first  of  all  the  treaties  regarding  a tribunal  of  arbitra- 
tion, though  it  was  not  ratified  by  the  United  States  because 
three  votes  were  lacking  in  order  to  make  up  the  legal  two- 
thirds  majority  in  the  Senate.  Sir  Pauncefote  gave  another 
sample  of  practical  peace  policy  when  war  was  imminent  be- 
tween England  and  America  on  account  of  the  Venezuela 
question.  He  succeeded  in  that  instance  in  bringing  the  dispute 
before  a tribunal  of  arbitration,  which  sat  at  Paris  under  the 
presidency  of  on  Martens  at  the  time  of  the  Conference. 

The  American  delegation  was  headed  by  Mr.  White,  who 
is  well  known  throughout  extensive  circles  and  greatly  respected, 

’ Holla’  Peace  Conference,  pp.  172-173. 


THE  COMPOSITION  OF  THE  CONFERENCE 


153 


and  who  was  Ambassador  at  Berlin  at  the  time.  Assisting 
him  were  a number  of  distinguished  and  interesting  person- 
alities, among  them  being  the  prominent  naval  author  Mahan 
and  an  extremely  alert  lawyer,  the  German- American  Holls. 

Conspicuous  in  the  transactions  is]  the  Russian  university 
professor  and  privy  councillor,  von  Martens,  who  is  so  well 
known  to  the  professional  student  of  international  law  by  his 
numerous  works  on  this  subject,  and  who  conducted  the  pro- 
ceedings of  the  second  commission  and  of  the  second  sub-com- 
mission with  the  greatest  skill,  besides  taking  an  active  part 
in  all  commissions  and  on  all  questions  by  his  suggestions  and 
assistance,  while  at  the  same  time  holding  the  office  of  president 
of  the  arbitration  court  at  Paris. 

We  admire  the  warm-hearted  eloquence,  parliamentary 
skill,  and  broad-minded  statesmanship  of  the  former  French 
prime  minister  and  later  President  of  the  Chamber  of  Deputies, 
Bourgeois,  who  was  the  youngest  of  the  heads  of  delegations 
to  The  Hague,  and  who  would  have  become  Minister  again  dur- 
ing the  continuance  of  The  Hague  Conference,  but  refused  on 
account  of  his  duties  at  The  Hague.  He  not  only  presided  in 
an  admirable  manner  over  the  Third  Commission,  which  was 
the  largest  and  unquestionably  the  most  important  one,  but 
also  exerted  an  influence  over  the  other  commissions  by  smooth- 
ing over  conflicts  of  opinion,  and,  when  a deadlock  occurred, 
in  the  proceedings,  by  referring  the  question  to  a committee 
where  he  attended  to  the  matter  skillfully  and  successfully, 
“rather  energetically  than  diplomatically,”  and  “with  tact  and 
firmness.”  He  was  supported  by  very  prominent  representa- 
tives of  the  army  and  navy  (Mounier  and  Pephau),  as  well  as 
by  a first-class  authority  on  international  law  (Renault). 

The  parliamentary  skill  of  the  French  plenipotentiary 
found  its  counterpart  in  the  diplomatic  facility  with  which  the 
chief  plenipotentiary  of  Italy,  Count  Nigra,  overcame  the 
difficulties  which  arose  in  the  proceedings.  He  was,  so  to 
speak,  also  the  dean  for  the  preservation  of  diplomatic  tradition 
and  international  comity,  and  everywhere  lent  earnest,  zealous 
cooperation. 

The  tenacious  idealism  of  the  French  deputy,  d’Estournelles 
de  Constant,  who  was  afterwards  referred  to  by  another  pleni- 
potentiary as  “ one  of  the  most  attractive  and  genial  personal- 
ities in  the  conference,”  acted  like  a captivating  sermon. 

On  the  contrary,  the  German  Colonel  Gross  v.  Schwarzhoff, 
whose  tragic  death  during  the  conflagration  at  Peking  is  still 
fresh  in  our  minds,  distinguished  himself  by  his  soldierlike 
frankness  and  determination,  while  Professor  Zorn,  the  scien- 
tific delegate  of  Germany,  won  recognition  through  the  scientific 
significance,  warmth  and  forcefulness  of  his  deliverances. 
Then  there  was  his  Austrian  colleague,  Dr.  Lammasch,  a univer- 


154 


THE  HAGQE  PEACE  CONFERENCES 


sity  professor,  whose  sincere  and  zealous  efforts  in  securing 
compromises  won  him  a place  of  honor  among  the  members  of 
the  Conference. 

Laboring  in  the  Peace  Conference  alongside  statesmen  and 
diplomats  who  had  a brilliant  career  behind  them,  and  alongside 
prominent  representatives  of  the  army  and  navy,  were  to  be 
noted  also  eminent  representatives  of  the  science  of  inter- 
national law. 

It  was  of  great  benefit  to  the  proceedings  of  the  Conference 
that  such  jurists  as  v.  Martens,  Renault,  Lammasch,  Zorn, 
Asser,  Descamps  and  Rolin  were  invited  to  attend.  An  ap- 
propriate lesson  had  been  derived  from  the  Geneva  Conference 
of  1864,  which  had  dispensed  with  professional  legal  assistance, 
and  this  lesson  was  confirmed  at  the  Brussels  Conference  of 
1874,  in  which  jurists  cooperated. 

Beside  the  Presidents  of  the  Conference,  of  the  Commissions 
and  Sub-commissions,  the  following  reporters  were  naturally 
conspicuous;  Count  Soltyk,  den  Beer  Portugael,  van  Karne- 
beek,  Renault,  Rolin  and  Descamps.  President  v.  Staal  was 
right  when,  in  his  concluding  address,  he  called  their  works 
masterpieces  which  would  continue  to  be  an  authoritative 
commentary. 

Of  course  the  plenipotentiaries  had  but  to  talk  and  vote 
in  accordance  with  their  instructions,  but  strong  personalities 
will  always  stand  forth  in  every  gathering.  As  the  Conference 
itself  had  begun  in  an  entirely  unprepared  state,  the  main  part 
of  the  proceedings  were  carried  out  without  instructions,  and 
in  this  manner  the  individual  skill  of  the  plenipotentiaries 
showed  itself  to  better  advantage.  Purely  personal  declara- 
tions and  ballots  ad  referendum  were  the  rule  for  a long  time. 

The  diversity  of  the  nations  showed  itself  plainly  in  the 
addresses,  the  brilliant  rhetoric  of  the  Latin,  eliciting  loud 
applause,  while  the  sober  criticism  of  the  Teuton  also  had  its 
effect.* 

It  has  been  seen  that  the  Second  Conference  followed  in 
general  the  procedure  adopted  by  the  first,  and  it  may  be  said 
that  the  personnel  of  the  second  corresponded  in  like  manner 
to  the  personnel  of  the  first,  for  the  twofold  reason  that  the 
nature  of  the  Conference  required  it,  and  the  precedent  of  1899 
was  too  persuasive  not  to  be  followed.  The  plenipotentiaries 
of  the  first  Conference  were,  as  a rule,  men  who  had  grown  old 
in  the  public  service,  and  who  had  won  enviable  reputations  as 

* Meurer’s  Haager  Friedenskonferenz,  Vol.  I,  pp.  2-5. 


THE  COMPOSITION  OF  THE  CONFERENCE 


155 


diplomats,  statesmen,  and  leaders  of  public  opinion.  The 
Second  Conference  likewise  resembled  the  first,  in  that  the  first 
delegates  were  chosen  from  the  same  general  classes.  They 
were,  of  course,  much  more  numerous,  because  instead  of 
twenty-six  States  represented,  forty-four  appointed  delegates 
who  took  part  in  the  work,  and  a forty-fifth  delegation  was 
admitted  just  before  the  close  of  the  Conference.  In  the  First 
Conference,  Europe  and  certain  parts  of  Asia  and  America 
were  represented,  to  the  exclusion  of  Latin-America,  unless 
Mexico  be  regarded  as  their  representative.  In  the  Second 
Conference,  the  Latin- American  States  were  invited,  and,  with 
two  exceptions,  responded.  We  have,  then,  a Conference 
international  in  fact  as  well  as  in  theory,  capable  of  legislating 
ad  referendum  for  the  world,  because  all  States  recognizing  and 
applying  international  law  were  invited,  and,  with  the  excep- 
tion of  Costa  Rica  and  Honduras,  participated  in  the  Confer- 
ence. The  assembly,  therefore,  was  geographically  interna- 
tional as  well  as  international  in  the  legal  sense  of  the  word. 
The  various  phases  of  our  civilization,  the  various  traditions 
of  the  past,  the  various  systems  of  government,  as  well  as  of 
law,  and  the  various  languages  which  composed  this  modem 
babel,  gave  a unique  character  to  this  first  tmly  international 
assembly. 

Following  the  method  adopted  in  describing  the  personnel 
of  the  First  Conference,  I mention  some  of  the  larger  and 
representative  delegations,  in  the  order  of  their  names  in 
French. 

Germany’s  first  plenipotentiary  was  Baron  Marschall  von 
Bieberstein,  Ambassador  at  Constantinople,  a lawyer  by  pro- 
fession, and  jurist  by  training,  seven  years  Minister  of  Foreign 
Affairs,  and  for  the  past  ten  years  Ambassador  in  the  storm- 
center  of  European  politics.  He  brought  to  the  Conference  a 
great  intellect,  supported  by  a great  physique,  and  both  in 
experience  and  in  his  person  fitted  to  dominate  an  interna- 
tional assembly.  M.  Kriege,  the  second  German  plenipoten- 
tiary, occupies  the  position  of  assistant  legal  adviser  to  the 
Department  of  Foreign  Affairs.  Statecraft  is  not  his  forte; 


156 


THE  HAGUE  PEACE  CONFERENCES 


the  traditional  insincerity  and  indirection  of  diplomacy  are 
foreign  to  his  manly  and  upright,  though  somewhat  unyielding 
nature.  His  training  is  that  of  a lawyer,  his  view  is  that  of  his 
profession,  and  he  follows,  to  use  a happy  phrase  of  my  Lord 
Coke,  “the  gladsome  light  of  jurisprudence”  whithersoever  it 
leads.  Vice-Admiral  Siegel,  the  naval  delegate,  added  to  the 
reputation  of  1899.  General  von  Giindell,  the  military  delegate, 
won  confidence  by  the  straight-forwardness  and  sincerity  of  his 
views,  as  well  as  by  his  genial  personality.  Dr.  Zorn,  who 
immortalized  himself  in  the  First  Conference  as  scientific  dele- 
gate, was  present,  but  was  not  permitted  by  his  delegation, 
for  reasons  which  a foreigner  can  not  well  discuss,  to  take  that 
part  in  the  Conference  which  his  abilities,  measured  by  past 
achievement,  would  have  suggested.  The  German  delega- 
tion,— leaving  out  an  efficient  minor  personnel,  really  assist- 
ants to  the  delegation  rather  than  aids  to  the  Conference, — 
was  thus  composed  of  a first  and  second  plenipotentiary,  of  a 
naval,  military  and  scientific  delegate.  This  may  be  considered 
as  the  typical  delegation;  neither  too  large  nor  too  small  for 
the  labor  imposed  upon  it.  Each  delegate  had  his  appropriate 
sphere  of  action,  and  was  qualified  for  it.  There  was  no  waste 
personnel,  and  it  is  probable  that  the  delegations  of  the  future 
will  follow  the  German  model,  and  be  limited  to  the  minimum 
requirement;  for  experience  suggests  that  large  delegations  in 
a representative  international  assembly  are  cumbersome  with- 
out any  compensating  increase  of  efficiency. 

The  American  delegation  was  composed  of  seven  plenipo- 
tentiaries and  two  technical  delegates,  and  the  delegation  as 
a whole  is  susceptible  of  a threefold  division : First,  the  ambas- 
sadors, three  in  number:  Joseph  H.  Choate:  first  plenipoten- 
tiary, General  Horace  Porter,  second  plenipotentiary,  and 
Uriah  M.  Rose,  third  plenipotentiary;  second,  the  plenipoten- 
tiaries without  the  rank  of  ambassador,  divisable  into  two 
groups,  of  whom  Mr.  David  Jayne  Hill  and  William  I.  Bu- 
chanan, whose  mission  was  general,  comprise  the  first  group, 
and  Rear-Admiral  Sperry  and  General  George  B.  Davis, 
respectively  naval  and  military  delegate,  comprise  the  sec- 


THE  COMPOSITION  OP  THE  CONFERENCE 


157 


ond;  third,  the  technical  delegates,  James  Brown  Scott, 
technical  delegate  and  expert  in  international  law,  and  Charles 
Henry  Butler,  expert  attach^  and  technical  delegate.  This 
delegation  is  typical  of  the  maximum  as  the  German  is  typical 
of  the  minimum. 

Continuing  the  examination  of  types,  two  Latin-American 
delegations  will  be  considered  in  their  alphabetical  order, — 
first,  the  Argentine  Republic,  and  second,  Brazil. 

The  Argentine  Republic  sent  five  delegates,  of  whom  three 
were  plenipotentiaries  and  two  technical  delegates.  The  per- 
sonnel of  the  Argentine  delegation  was  remarkable  in  all  re- 
spects for  the  distinguished  public  position  previously  occu- 
pied by  its  members,  for  example:  the  plenipotentiaries  MM. 
Saenz  Pena,  Drago,  and  Larreta,  had  been  Ministers  of  Foreign 
Affairs.  General  Reynolds,  the  military  delegate,  was  Inspec- 
tor General  of  the  Army  and  Military  Attache  at  Berlin. 
Captain  Martin,  naval  delegate,  was  former  Minister  of  Marine 
and  Naval  Attache  at  London.  No  country  selected  a more 
distinguished  and  more  capable  delegation. 

Brazil’s  first  plenipotentiaiy,  M.  Ruy  Barbosa,  had  the 
rank  of  Ambassador.  The  second  plenipotentiary  was  M. 
Lisboa,  Brazilian  Minister  to  The  Hague.  The  military  and 
naval  delegates.  Colonel  de  Almeida  and  Captain  Burlamaqui 
I de  Moura,  were  qualified  by  experience  in  their  various 
branches  of  the  service  to  represent  the  military  and  naval 
1 policies  of  their  country.  The  great  and  distinguished  role 
of  M.  Barbosa,  which  made  him  a leading  personality  of  the 
Conference,  will  be  mentioned  later. 

Turning  now  to  the  Austrian  delegation,  we  find  it  headed 
by  an  Ambassador,  M.  Gaetan  Merey  de  Kapos-Mere,  who 
distinguished  himself  as  a ready  debater  and  as  a leader  of 
great  boldness,  shrewdness,  assurance,  and  force,  particularly 
in  the  later  proceedings  of  the  Conference.  The  scientific 
delegate  was  Dr.  Henri  Lammasch,  professor  at  the  University 
of  Vienna,  who,  as  previously  stated,  won  the  respect  and 
admiration  of  his  colleagues  by  his  profound  knowledge, 
gentleness  of  manner,  and  sympathy  with  the  aims  of  the 


158 


THE  HAGUE  PEACE  CONFERENCES 


Conference.  Both  of  these  delegates  had  previously  repre- 
sented their  country  in  the  First  Conference. 

Belgium  was  represented  by  M.  Beernaert,  who,  as  President 
of  the  First  Commission  of  1899,  rendered  great  service  to  the 
Conference,  and  as  President  of  the  Second  Commission  of 
the  Second  Conference,  sustained  a great  and  worthy  reputa- 
tion. M.  van  den  Heuvel,  the  second  plenipotentiary,  had 
been  Minister  of  Justice,  and  brought  to  the  Conference  trained 
legal  capacity,  great  subtlety  of  mind  and  fertility  of  resources, 
and  a happy  and  incisive  phrase  which  greatly  enlivened  the 
proceedings;  indeed,  one  of  his  addresses  in  which  he  enforced 
his  views  by  a reference  to  “two  et  ceteras”  as  enlarging  the 
scope  of  the  program,  was  one  of  the  hits  of  the  Conference. 
The  third  plenipotentiary,  Baron  Guillaume,  Minister  to  The 
Hague,  was  reporter  of  the  First  Commisson  in  succession  to 
Baron  Descamps,  and  his  elaborate  report  on  the  work  of  the 
commission  will  long  be  consulted  by  student  and  scholar. 

China  was  represented  by  an  Ambassador,  M.  Lou  Tseng- 
Tsiang,  and  by  the  Hon.  John  W.  Foster,  plenipotentiary, 
who,  after  a long  and  honorable  career,  culminating  in  the 
Secretaryship  of  State  of  the  United  States,  achieved  solid 
and  permanent  distinction  in  the  tortuous  paths  of  celestial 
diplomacy. 

No  delegation  was  more  adequately  represented  than  the 
French  delegation,  at  whose  head  was  M.  L6on  Bourgeois,  first 
plenipotentiary  and  President  of  the  First  Commission,  who, 
by  his  persuasiveness  and  profound  interest  in  the  purposes 
of  the  Conference,  achieved  a world-wide  reputation  in  the 
First  Conference,  which  he  worthily  sustained — it  could  not  be 
enhanced — in  the  second.  The  second  plenipotentiary  was 
Baron  d’Estournelles  de  Constant,  who  likewise  rendered  the 
same  valuable  services  in  the  second  which  he  performed  in 
the  first.  As  Secretary  of  the  Third  Commission  of  1899,  as 
Secretary  of  the  First  Commission  of  1907,  as  intermediary 
between  divergent  and  seemingly  irreconcilable  views,  as 
translator  of  the  various  addresses  delivered  in  English,  he 
brought  the  delegates  into  close  touch  and  was,  in  a word,  the 


THE  COMPOSITION  OF  THE  CONFEKENCE 


159 


embodiment  of  the  gentleness  and  hope  appropriate  to  a peace 
conference.  M.  Louis  Renault,  professor  at  the  Paris  Law 
School,  Legal  Adviser  to  the  Ministry  of  Foreign  Affairs,  was 
the  third  plenipotentiary.  At  the  beginning  of  the  Conference 
he  ably  and  tactfully  represented  the  views  of  his  delegation. 
As  reporter  of  various  commissions,  as  president  of  the  small 
editing  or  drafting  committee,  he  gave  to  the  various  projects 
clearness  of  form,  elegance  of  language,  and  that  legal  setting 
necessary  to  international  documents.  The  military  delegate 
was  General  of  Division  Amourel,  the  naval  delegate  Vice- 
Admiral  Arago,  both  equal  to  the  responsibilities  of  their 
position.  M.  Henri  Fromageot,  technical  delegate,  brought  to 
the  Conference  the  trained  mind  of  the  lawyer,  and  as  reporter 
I of  the  F ourth  Commission  and  its  official  translator,  he  rendered 
I services  of  the  greatest  value.  It  is  not  given  to  many  young 
men  to  accquire  in  so  short  a time  such  a solid  reputation  and 
; so  many  titles  to  remembrance;  but  above  all,  his  honesty  of 
j purpose,  his  gentleness  of  manner,  his  transparent  sincerity, 
not  only  engendered  personal  affection,  but  reflected  credit  on 
j his  country. 

I The  British  delegation  was  a large  one,  and  was  headed  by 
f Sir  Edward  Fry  as  Ambassador.  Sir  Edward  was  the  Nestor 
I of  the  Conference,  turned  eighty.  Trained  for  the  bar,  and 
I having  won  distinction  as  a lawyer,  as  judge,  and  as  Lord 
P Justice,  he  evidently  preferred  the  simplicity  and  directness 
of  the  court-room  to  the  dilatory  and  tortuous  methods  of 
1 diplomacy.  A lifetime  spent  at  the  bar  and  on  the  bench 
lent  peculiar  weight  in  discussions  of  a legal  nature,  and  his 
short  and  weighty  sentences,  as  befitting  a judge,  were  always 
I listened  to  with  respect.  Sir  Ernest  Satow,  Lord  Reay,  and 
: Sir  Henry  Howard,  respectively  second,  third,  and  fourth 
plenipotentiaries,  were  able  coadjutors.  Mr.  Eyre  Crowe  and 
Mr.  Cecil  Hurst,  technical  delegates,  commanded  universal 
respect,  and  if  their  work,  mostly  in  the  small  committees, 
had  been  on  the  floor  of  the  commission,  it  would  have  given 
them  international  standing. 

The  Italian  delegation  conformed  to  the  minimum  type. 


160 


THE  HAGUE  PEACE  CONFERENCES 


Count  Tornielli,  first  plenipotentiary,  was  president  of  the 
Italian  delegation,  and  as  President  of  the  Third  Commission, 
succeeded  in  impressing  it  with  his  views  and  bringing  them 
in  large  measure  to  realization.  M.  Fusinato,  formerly  Minis- 
ter of  Public  Instruction,  while  ordinarily  silent  in  the  commis- 
sion,— due,  no  doubt,  to  Tornielli’s  desire  to  represent  Italy  on 
all  occasions, — displayed  his  wonderful  vivacity  and  fertility 
of  resource  in  the  Committee  of  Examination  of  which  he  was 
a member,  and  as  President  of  the  Committee  of  Examination 
C,  charged  with  the  revision  of  the  Convention  of  1899  for 
the  Peaceful  Adjustment  of  International  Differences,  he 
displayed  the  rare  qualities  of  a trained  lawyer  and  man  of 
affairs. 

The  Japanese  delegation  was  headed  by  M.  Keiroku  Tsud- 
zuki,  with  the  rank  of  Ambassador,  who,  in  conference,  com- 
mission, and  committee,  represented  his  country  and  its 
special  interests  with  admirable  tact  and  dignity,  using  as 
occasion  required,  French  or  English  with  equal  facility  and 
telling  effect.  It  was  noticeable  that  he  commended  even 
when  he  did  not  vote,  and  that  his  favorite  method  of  express- 
ing dissent  was  not  by  a negative  vote,  but  by  abstention,  in 
order  that  his  country  might  have  further  time  for  reflec- 
tion. 

Norway  made  its  first  appearance  as  an  independent  nation 
at  the  Second  Conference,  and  Francis  Hagerup,  former  Prime 
Minister  to  The  Hague,  made  a distinct  impression  at  the  open- 
ing of  the  Conference,  which  he  maintained  until  its  conclusion. 
As  President  of  the  First  Sub-Commission  of  the  Third  Commis- 
sion, he  contributed  materially  to  its  labors,  and  took  a leading 
part  in  the  labors  of  the  Conference.  The  technical  delegate, 
Mr.  Lange,  won  the  confidence  and  respect  of  his  colleagues, 
and  his  command  of  clear  thought  and  mastery  of  an  idioma- 
tic and  admirable  French  caused  him  to  be  listened  to  with 
respect,  both  in  the  commission  and  in  the  committees  of 
which  he  was  a member. 

The  Dutch  delegation  was  naturally  large,  because  while 
the  Conference  was  called  by  Russia  and  dominated  by  it. 


THE  COMPOSITION  OF  THE  CONFERENCE 


161 


Holland,  as  the  seat  of  the  Conference,  was  charged  in  great 
part  with  administrative  details.  M.  de  Beaufort,  former 
Minister  of  Foreign  Affairs,  was  first  plenipotentiary;  M.  Asser, 
a power  in  the  First  Conference,  was  a leading  personality  of  the 
second,  and  his  profound  knowledge  of  international  law, 
public  and  private,  as  well  as  his  experience  as  arbitrator  in 
international  conflicts,  added  point  and  weight  to  his  frequent 
intervention.  Jonkheer  Den  Beer  Poortugael,  former  Minis- 
ter of  War,  and  member  of  the  First  Conference,  made  himself 
the  mouthpiece  of  enlightened  and  humanitarian  views.  Ad- 
miral Roell,  former  Minister  of  Marine,  took  an  active  part  in 
naval  matters  and  represented  worthily  the  views  of  his  coun- 
try. The  same  may  be  said  of  M.  Loeff,  former  Minister  of 
Justice,  M.  van  Kamebeek,  assistant  delegate,  who  as  reporter 
and  master  of  the  modem  languages,  rapidly  and  gracefully 
translated  in  case  of  need. 

The  Portuguese  delegation  conformed  to  the  minimum  type, 
three  plenipotentiaries  and  two  technical  delegates,  but  its 
head,  the  Marquis  de  Several,  with  the  rank  of  Ambassador, 
and  M.  d’Oliveira  played  a very  leading  and  honorable  part 
in  all  discussions  concerning  arbitration. 

The  Roumanian  delegation  consisted  of  two  plenipotentia- 
ries and  a technical  delegate.  M.  Beldiman,  the  first  plenipo- 
tentiary, impressed  himself  on  the  Conference,  albeit  his  atti- 
tude was  largely  one  of  opposition. 

The  r61e  of  Russia  at  the  Conference  was  very  distinguished 
although  it  can  not  be  said  that  it  was  as  commanding  as  in 
1899.  The  reason  for  that  lies  perhaps  in  the  fact  that  the 
First  Conference  was  an  experiment  and  largely  under  the 
tutelage  of  the  proposer,  whereas  the  Second  Conference  was 
large  and  conscious  of  its  world-wide  representation  and 
significance.  M.  de  Nelidow,  Ambassador  of  Russia  at  Paris, 
and  first  plenipotentiary,  was  President  of  the  Conference. 
Although  not  a member  of  the  First  Conference,  his  views  on 
mediaton  were  incorporated  by  Mr.  Holls  into  the  “Con- 
vention for  the  Peaceful  Ad  j ustment  of  International  Disputes . ’ ’ 
Although  in  poor  health,  he  presided  in  person  at  the  Confer- 


162 


THE  HAGUE  PEACE  CONFERENCES 


ence,  attended  the  various  commissions,  and  was  a constant 
visitor  in  the  committees.  If  he  did  not  enjoy  the  influence 
of  his  predecessor,  M.  de  Staal,  this  may  be  attributed  in  part 
to  his  broken  health,  and  to  a certain  distance  which  suggested 
to  the  uninitiated  indifference  to  the  aims  and  purposes  of 
the  Conference.  The  proces-verbaux  however  testify  to  an  un- 
varying dignity  of  thought  and  expression,  and  his  appeals 
to  the  delegates  at  important  and  crucial  moments  showed  that 
he  appreciated  to  the  full  the  importance  of  his  position.  The 
second  plenipotentiary  was  M.  de  Martens,  whose  presence  in 
international  conferences  is  a guarantee  at  once  for  careful 
and  profound  preparation,  for  sympathy  with  the  purposes  of 
the  Conference,  and  a desire  to  terminate  its  proceedings 
with  substantial  results.  He  was  listened  to,  I am  told  by 
members  of  the  First  Conference,  with  open-mouthed  interest, 
and  his  services  to  arbitration,  to  the  Commission  of  Inquirj'-, 
and  in  establishing  the  Permanent  Court,  have  given  him  a 
permanent  reputation  and  placed  him  high  among  the  bene- 
factors of  international  justice.  If  he  did  not,  in  the  Second 
Conference,  live  up  to  a reputation  already  acquired,  this  is  due 
undoubtedly  to  the  fact  that  he  suffered  from  gout  and  was 
often  confined  to  his  room.  M.  Tcharykow,  third  plenipoten- 
tiary and  Minister  to  The  Hague,  was  usually  the  mouthpiece 
of  the  Russian  delegation  in  commissions,  and  in  admirable 
and  concise  French  explained  the  views  of  his  country.  M. 
Prozor,  technical  delegate,  as  editor  of  the  proces-verbaux, 
rendered  substantial  and  enduring  services.  His  charm  of 
manner,  his  evident  desire  to  be  of  service,  will  not  be  for- 
gotten by  those  who  came  in  contact  with  him.  The  naval 
and  military  delegates  played  a less  important  role  in  the  Con- 
ference, because  by  general  agreement,  disarmament  was  not 
the  burning  issue  at  the  Conference,  for  armament  rather  than 
disarmament  seemed  a cardinal  principle  of  Russian  policy 
at  the  Second  Conference. 

Sweden  was  represented  by  M.  Hammerskjold  as  first  dele- 
gate. As  former  Minister  of  Justice  and  as  member  of  the 
Permanent  Court  of  Arbitration,  he  was  peculiarly  qualified 


THE  COMPOSITION  OF  THE  CONFERENCE 


163 


and  genuinely  interested  in  the  cause  of  arbitration.  His 
influence  in  the  committee  was  great,  and  always  used  to 
advance  the  cause  of  progress. 

Switzerland  was  represented  by  three  plenipotentiaries,  one 
of  whom,  M.  Carlin,  looked  after  the  interests  of  the  Federa- 
tion with  great  persistence.  Colonel  Borel,  as  reporter  of  the 
Second  Sub-Commission  of  the  Second  Commission,  and  as 
frequent  speaker  in  the  commission,  held  the  attention  and 
commanded  the  respect  of  the  Conference,  as  did  also  Pro- 
fessor Huber  upon  the  rare  occasions  on  which  he  addressed 
the  Conference. 

Such,  in  general,  was  the  composition  of  the  delegations  of 
the  Second  Conference. 


2.  Influence  of  Various  Delegations  and  Delegates 

The  States  represented  at  the  Conference  were  regarded  as 
equals,  and  rightly  so,  for  equality  of  States  is  the  postulate 
of  international  law.  As  Chief  Justice  Marshall  happily 
phrased  it  in  the  case  of  The  Antelope, 

No  principle  of  general  law  is  more  universally  acknowl- 
edged than  the  perfect  equality  of  nations.  Russia  and 
Geneva  have  equal  rights.  Its  results  from  this  equality  that 
no  one  can  rightfully  impose  a rule  on  another.  Each  legis- 
lates for  itself,  but  its  legislation  can  operate  on  itself  alone. 
A right,  then,  which  is  vested  in  all  by  the  consent  of  all  can 
be  divested  only  by  consent; — ^as  no  nation  can  prescribe  a rule 
for  others,  none  can  make  a law  of  nations.^ 


Accepting  this  terse  statement  as  unquestioned  law,  it 
follows  that  each  nation  represented  at  the  Conference,  be 
it  or  its  delegation  large  or  small,  should  vote  as  an  equal 
on  all  questions  before  the  Conference;  but  while  we  all 
freely  admit  the  equality  of  States  before  the  law,  expe- 
rience shows  us  that  the  influence  possessed  by  States  varies 


‘ Case  of  The  Antelope  (1825),  10  Wheaton,  66,  122. 


164 


THE  HAGUE  PEACE  CONFERENCES 


just  as  the  influence  of  a man  who  is,  in  legal  parlance, 
the  equal  of  his  fellow.  It  follows,  therefore,  that  while  all 
States  are  legally  equal,  still  in  this  practical  world  of  ours  we 
must  not,  or  at  least  we  can  not,  ignore  the  historic  fact  that 
nations  exercise  an  influence  upon  the  world’s  affairs  commen- 
surate with  their  traditions,  their  industry,  their  commerce, 
and  their  present  ability  to  safeguard  their  rights.  It  follows 
from  this  that  though  equal  in  theory,  their  influence  is  often 
unequal  in  practice.  Again,  we  know  that  just  as  men  special- 
ize in  certain  professions,  and  acquire  a standing  by  so  doing, 
certain  nations,  whether  from  their  geographical  situation 
or  from  the  development  of  industry  and  commerce,  or  from 
military  and  intellectual  predominance,  acquire  an  influence 
which  others  not  so  circumstanced  fail  to  possess.  The 
recognition  of  this  is  not  the  recognition  of  inequality;  it  is  a 
recognition  of  facts  as  they  actually  are,  which  can  not  be 
overlooked  in  seeking  to  establish  permanent  institutions. 
Thus,  for  example,  a country  with  no  seacoast,  while  it  may 
have  large  commercial  interests,  and  while  its  views  upon 
maritime  warfare  are  sound  and  deserving  of  respect,  can  not 
expect  that  its  vote  on  a question  of  maritime  law  be  re- 
ceived in  an  international  assembly  with  the  same  influ- 
ence as  the  vote  of  a great  maritime  power  would  be.  In 
other  words,  while  Russia  and  Geneva  are  equal,  in  mari- 
time matters,  Russia  and  Switzerland  do  not  stand  upon 
the  same  plane  of  equality.  It  also  follows  that  as  no 
nation  can  legislate  for  another,  the  powers  of  large  mari- 
time interests  will  not  permit  the  votes  of  interior  countries 
to  dictate  or  prejudice  their  maritime  interests.  Therefore, 
a proposed  maritime  reform  can  not  well  be  carried,  even  if  the 
vote  be  overwhelmingly  in  its  favor,  if  Great  Britain,  France, 
Russia  and  Japan  be  opposed  to  its  realization.  As  an  exam- 
ple of  this  may  be  cited  the  American  project  for  the  abolition 
of  the  capture  of  unoffending  enemy  property  upon  the  high 
seas.  The  four  powers  mentioned  declared  against  it,  and  as 
the  Conference  is  a diplomatic  asssembly,  not  a parliament,  the 
project  was  wisely  dropped.  A more  extreme  illustration  of 


THE  COMPOSITION  OF  THE  CONFERENCE 


165 


the  influence  of  certain  maritime  powers  is  furnished  by  the 
failure  of  the  British  proposition  involving  the  abolition  of 
contraband,  which  Germany,  France,  Russia  and  the  United 
States  opposed.  In  the  same  way,  the  attitude  of  Germany  in 
matters  of  land  warfare  would  be  determinative,  and  the  Con- 
ference shows  that  the  opposition  of  Germany  aided  and 
abetted  a small  minority  to  a general  treaty  of  arbitration,  not- 
withstanding an  overwhelming  vote  in  its  favor,  blocked  the 
will  of  the  Conference.  For  the  purpose  of  the  Conference  is 
not  to  negotiate  conventions  which  some  may,  but  which  all 
must  observe,  and  therefore  powers  most  deeply  involved  and 
interested  in  the  outcome  must  agree  in  advance  to  the  prop- 
osition and  pledge  themselves  faithfully  to  excute  it  when 
voted.  It  is  abundantly  clear,  therefore,  that  the  delegations 
at  The  Hague  did  not  and  could  not  possess  equal  influence  in 
framing  the  conventions,  and  that,  notwithstanding  the  prin- 
ciple of  legal  equality  the  larger  States  either  forced  their 
views  upon  the  Conference  or  by  their  opposition  prevented 
an  unacceptable  proposition  from  being  accepted.  It  is,  how- 
ever, by  means  of  the  equality  of  the  States  that  the  minor- 
ity was  thus  enabled  to  constrain  the  majority.  I beg  to 
quote  the  views  of  M.  Renault  upon  the  principle  of  equality 
and  the  useful  r61e  of  the  smaller  States  at  international  con- 
ferences. 


There  is  the  opportunity  for  small  States  to  take  a very  use- 
ful part  provided  their  action  be  spontaneous  and  disinterested. 
They  above  all  are  better  able  to  support  just  causes,  first, 
because  they  are  not  strong  enough  to  carry  unjust  causes 
through.  They  then  serve  as  a connecting  link;  they  find 
means  of  bringing  harmony  into  the  conflicting  views  of  the 
Great  Powers.  Some  of  the  delegates  have  done  yeoman’s 
service  in  that  direction. 

The  Conference  was  based  on  the  idea,  an  essential  one,  I 
grant,  that  the  States  are  juridically  equal.  They  are  all 
sovereigns,  equal  in  law,  etc.  Yet  facts  must  also  be  taken 
into  account,  better  tact  and  a truer  notion  of  the  actual 
situation  must  at  times  come  into  play. 

Now  juridically  equality  among  States,  if  taken  literally,  leads 
to  absurd  conclusions.  This  we  must  have  the  courage  to  say. 


166 


THE  HAGUE  PEACE  CONFEBENCE8 


I will  take  an  instance  which  I trust  will  not  hurt  any  sensi- 
bilities even  if  there  be  in  this  hall  persons  belonging  to  the 
small  nations  I am  about  to  mention.  Can  it  be  admitted 
that  in  a question  of  maritime  law  the  vote  of  the  Grand  Duchy 
of  Luxemburg  or  even  of  Montenegro  shall  have  as  much 
weight  as  that  of  Great  Britain?  Could  those  small  countries, 
on  the  plea  of  unanimity,  block  reforms  upon  which  the  great 
maritime  powers  are  agreed? 

Small  States  often  misapprehend  their  own  interests. 
They  think  that  obstinacy,  I would  not  use  the  word  obstruc- 
tion, affords  the  best  means  of  asserting  their  independence, 
and  they  take  the  risk  of  jeopardizing  the  success  of  the  Con- 
ferences, which  nevertheless  are  of  so  great  benefit  to  them,  by 
not  taking  sufficient  notice  of  the  majority’s  opinion.  In 
those  meetings,  I wish  to  repeat  it,  they  find  the  invaluable 
opportunity  to  obtain  a hearing,  to  claim  what  they  consider 
fair,  to  arouse  the  sympathy  of  great  States  which  will  offset 
the  fears  inspired  by  powerful  neighbors.^ 

It  is  seen,  therefore,  that  some  delegations  possessed  more 
influence  in  the  Conference  than  others,  and  it  is  equally 
capable  of  demonstration  that  certain  delegates,  whether 
representatives  of  leading  delegations  or  by  virtue  of  their 
character  and  ability,  enjoyed  greater  distinction  than  others 
and  profoundly  influenced  the  proceedings.  It  is  likewise  sus- 
ceptible of  demonstration  that  certain  delegates,  irrespective 
of  their  delegations,  enjoyed  a degree  of  personal  confidence 
which  counted  for  much  in  the  development  and  work  of  the 
Conference.  It  is  true  that  the  delegate  spoke  as  representa- 
tive of  a state,  although  at  one  and  the  same  time  he  may  have 
represented  his  individual  views,  and  it  is  a fact  that  these 
views  expressed  with  clearness  and  persuasiveness  of  manner 
deeply  impressed  the  delegates,  who,  unless  positively  instructed 
by  their  Governments,  rallied  to  the  support  of  a proposi- 
tion which  appealed  to  their  judgment,  and  it  is  also  a fact  that 

* The  Work  of  The  Hague,  1899,  1907,  a lecture  delivered  by  Professor 
Renault,  June  5,  1908,  in  the  School  of  the  Political  Sciences.  Printed  in 
the  Annales  des  Sciences  Politiques  for  July  15,  1908,  and  published  in 
pamphlet  form  by  F61ix  Alcan,  Paris,  1908.  The  quotation  is  taken  from 
pp.  16-17  of  the  pamphlet.  See  also  Professor  Renault’s  restatement  of 
his  views  in  an  address  on  the  Work  of  The  Hague  in  1899  and  1907,  deliv- 
ered at  Kristiania,  May  18,  1908,  before  the  Nobel  Institute. 


THE  COMPOSITION  OF  THE  CONPEEENCE 


167 


these  personal  convictions,  transmitted  to  their  respective 
Governments,  resulted,  on  various  occasions,  in  obtaining 
instructions  from  the  home  Governments  which  permitted  the 
delegates  to  vote  according  to  the  convictions  developed  in 
the  Conference.  A most  remarkable  instance  of  the  effect 
produced  by  a commanding  personality  is  that  of  M.  Bourgeois, 
who  by  persuasiveness  and  the  force  of  argument,  secured  the 
reference  of  the  project  for  an  arbitral  court  of  justice  to  the 
Committee  of  Examination,  and  whose  unwavering  support 
and  conciliatory  attitude  in  the  committee  caused  it  to  be 
accepted  by  the  commission,  and  ultimately  voted  by  the 
Conference.  It  is  likewise  true  that  M.  Bourgeois’s  support  of 
obligatory  arbitration  of  carefully  selected  topics  secured  a 
majority  in  favor  of  his  project,  although  many  of  the  delegates 
preferred  a general  treaty  of  arbitration,  with  the  time-honored 
reserves  of  independence,  vital  interest  and  honor.  It  is  also 
a fact  that  the  conciliatory  attitude  of  Mr.  Choate  in  the  matter 
of  the  establishment  of  a prize  court,  and  his  intervention  as 
mediator  between  the  German  and  British  delegations,  resulted 
in  a modified  proposition,  which  eventually  proved  acceptable 
to  both  delegations,  and  is  embodied  in  the  Convention  for  the 
Establishment  of  a Prize  Court. ^ It  is  no  less  true  that  the 
attitude  of  Marschall  von  Bieberstein  on  all  occasions  carried 
great  weight,  not  merely  because  he  spoke  as  the  represen  ta- 

‘ It  is  not  for  a subordinate  of  the  American  delegation  to  sound  the 
praises  of  his  chief.  Mr.  John  W.  Foster,  an  eye-witness  of  the  Conference, 
has  expressed  himself  with  great  precision  on  Mr.  Choate’s  role  at  the 
Conference,  and  I therefore  quote  his  measured  opinion  in  full.  Mr.  Foster 
says: 

“The  person  who  gained  the  most  reputation  out  of  the  Conference 
was  Mr.  Choate,  the  head  of  the  American  delegation.  He  was  much 
handicapped  by  his  imperfect  knowledge  of  the  French  language,  but  his 
ability  as  a speaker  was  recognized  early  in  the  sessions.  His  long  train- 
ing at  the  bar,  his  political  and  diplomatic  experience,  his  courtly  address^ 
and  his  ready  wit,  admirably  fitted  him  for  the  important  role  he  had  to 
play.  The  American  delegation  presented  more  important  and  contro. 
verted  propositions  than  any  [other  delegation,  and  Mr.  Choate  .... 
had  the  chief  burden  to  bear  in  their  defense.  In  the  discharge  of  this 
duty  he  antagonized  able  men  in  the  opposition,  but  he  never  lost  the 
respect  and  esteem  of  the  delegates.” 


168 


THE  HAGUE  PEACE  CONFERENCES 


tive  of  a great  power,  but  because  he  spoke  as  a great  diplomat, 
experienced  in  parliamentary  practice  as  well  as  in  difficult  and 
subtle  negotiations.  Had  he  supported  a general  treaty  of 
arbitration,  as  at  one  time  seemed  probable,  he  would  have 
been,  without  doubt,  the  dominating  figure  from  the  opening 
to  the  close  of  the  Conference,  because  he  would  have  expressed 
in  his  person  the  hopes  and  aspirations  of  the  Conference,  and 
would  have  forced  their  realization.  At  all  times  he  was  a 
great  and  admired  figure,  who  never  ceased  to  arouse  interest, 
although  he  failed  to  command  implicit  confidence  by  reason 
of  his  attitude  on  arbitration.  There  were,  however,  three 
personalities  at  the  Conference  that  impressed  it  by  virtue  of 
their  character  and  ability,  irrespective  of  the  weight  naturally 
attributable  to  their  respective  delegations.  I refer  to  Dr. 
Drago,  M.  Barbosa,  and  M.  Renault. 

Dr.  Drago  appeared  for  the  first  time  in  an  international 
conference,  and  the  country  which  he  so  worthily  represented 
likewise  made  its  appearance  for  the  first  time  in  a great 
international  assembly.  Dr.  Drago’s  name  is  inseparably 
linked  with  the  proposition  for  the  limitation  of  force  in  the 
collection  of  contract  debts.  He  formulated  this  doctrine  in 
extreme  form  in  a much-celebrated  note,  dated  December  29, 
1902.  The  American  project  introduced  by  General  Porter  was 
more  moderate  in  form  and  expression  than  Drago’s,  yet  he 
cheerfully  supported  it,  and  it  was  due  to  his  energy,  straight- 
forwardness and  influence  with  the  delegations  of  Latin- 
America  that  it  was  eventually  accepted.  Their  confidence  in 
him  led  them  to  accept  his  leadership,  and  the  limitation  of 
force  in  the  collection  of  contract  debts  is  in  no  small  measure 
his.  The  happy  cooperation  of  the  American  delegation  and 
Dr.  Drago  assures  the  peace  of  the  world.  The  influence  of  Dr. 
Drago  was  largely  personal,  for  although  he  spoke  as  a dele- 
gate of  Argentine,  it  was  not  Argentinian  influence,  but  the 
personal  influence  based  upon  the  character  and  ability  of  Dr. 
Drago  which  inspired  the  confidence  of  his  Latin-American 
brethren  and  which  assured  him  the  respect  of  his  fellow  dele- 
gates at  large. 


THE  COMPOSITION  OF  THE  CONFERENCE 


169 


In  the  same  way,  the  influence  of  M.  Ruy  Barbosa  was  per- 
sonal, for,  although  he  represented  a great  and  a growing 
country  of  the  western  world,  which  has  in  its  past  played  a 
leading  role,  especially  in  matters  of  arbitration,  and  whose 
future  is  full  of  boundless  possibilities,  M.  Barbosa’s  influence 
was  not  only  that  of  a delegate  of  Brazil,  but  of  a representative 
of  Latin-America.  He  voiced  their  sentiments,  and  proclaim- 
ing the  equality  of  the  States  under  international  law,  the 
equality  of  right,  not  merely  in  theory  but  in  its  exercise,  he 
made  himself  the  mouthpiece  against  real  or  fancied  aggres- 
sion. He  also  made  himself  the  spokesman  of  the  various 
States  that  claim  an  equal  influence  as  well  as  an  equal  vote  in 
the  regulation  of  international  affairs.  A man  of  great  ability, 
of  remarkable  grasp  of  international  law  and  a command  of 
ready  and  idiomatic  French,  he  was  from  the  beginning  a force, 
and  in  the  concluding  weeks  of  the  Conference  a dominating 
personality.  I do  not  like  to  criticise  a man  whom  I admire, 
and  whose  attitude  I understand  and  appreciate,  but  it  may 
not  be  improper  to  suggest  that  a too  strict,  not  to  say  rigid, 
adherence  to  theory,  and  an  unwillingness  to  adjust  theory  to 
the  necessities  of  the  modern  world,  which  require  often  a 
renunciation  of  an  extreme  right  in  the  interest  of  all,  prejudice 
and  discredit  a theory;  for 

by  the  argument,  a principle  is  pressed  to  an  absurdity  as  a 
bubble  is  blown  until  it  bursts.  Looking  at  the  words  merely, 
there  is  some  foundation  for  the  argument,  and,  following  the 
words,  only,  the  conclusion  may  be  arrived  at.* 

What  shall  one  say  of  M.  Renault  without  seeming  to  indulge 
in  exaggeration?  Trained  in  municipal  law,  a master  of 
the  conflict  of  laws,  a teacher  of  public  international  law  and 
the  founder  of  the  modern  school  of  French  jurisprudence, 
practiced  in  affairs  of  state,  and  representative  of  France 
at  the  most  recent  and  most  important  international  confer- 
ences, Professor  Louis  Renault  was  indicated  in  advance  to 
play  a leading  role  at  the  Second  Peace  Conference.  His  dele- 

* White  V.  Bluett,  23  Law  Journal,  N.  S.,  Exchequer,  36. 


170 


THE  HAGUE  PEACE  CONFERENCES 


gation  was  a great  and  commanding  one,  his  native  language 
was  the  language  of  the  Conference,  and  who  more  fitted  than 
he  to  advance,  expound,  and  defend  the  special  interests  of 
his  Government  in  the  language  of  the  Conference?  From  the 
beginning  he  stood  forth  as  the  embodiment  of  the  French 
delegation,  but  little  by  little  his  gentleness  of  manner,  his 
large  sympathy  and  breadth  of  view,  his  kindliness,  his  mas- 
tery of  international  law  and  international  procedure,  his 
evident  desire  to  subordinate  self  to  the  success  of  a great 
cause,  the  fairness  which  weighed  the  argument  of  friend  or 
opponent  with  equal  scales,  caused  him  to  be  looked  upon  as 
one  set  apart.  The  skill  in  debate,  for  his  answer  to  Baron 
von  Bieberstein’s  masterly  argument  against  arbitration  was 
the  great  address  of  the  Conference ; the  devotion  to  detail, 
evidenced  by  the  numerous  reports  he  presented  to  the 
Conference,  his  willingness  to  assume  burdens  under  which 
the  Conference  itself  staggered,  his  infinite  tact  and  courtesy 
in  reconciling  divergent  views  and  from  discord  producing 
harmony,  caused  him  little  by  little  to  be  looked  upon,  not 
as  a member  of  the  French  delegation,  but  as  a trusted 
adviser,  counselor  and  guide  of  the  entire  Conference.  He 
came  to  the  Conference  a Frenchman;  he  left  it  a citizen 
of  the  world,  and  in  the  last  weeks  of  the  Conference  the 
simple  teacher  of  youth  became  the  leader  of  men  of  affairs. 
It  is  no  discourtesy  to  other  delegations,  nor  is  it  any 
injustice  to  any  one  man  or  group  of  men,  to  say  that 
Louis  Renault  was  the  man  of  men,  the  incarnation  of  the 
spirit  and  purpose  of  the  Conference,  and  that  his  work  in 
commission,  in  committee,  and  especially  as  chairman  of  the 
small  editing  committee,  has  inseparably  linked  his  name  with 
the  Second  Peace  Conference,  and  in  his  own  day  assured  him 
the  grateful  remembrance  of  posterity.  The  meek  and  hum- 
ble are  not  without  their  reward,  but  it  rarely  comes  in  such 
full  measure  in  a lifetime. 

In  an  interesting  and  hitherto  unpublished  address  on  the 
Second  Hague  Conference,  the  Honorable  John  W.  Foster,  who 
represented  China,  says : 


THE  COMPOSITION  OP  THE  CONFERENCE 


171 


The  first  three  delegates  from  the  United  States,  it  is  noted, 
were  given  the  rank  of  ambassador,  while  in  the  delegations 
of  the  other  leading  powers  only  the  first  delegate  was  named 
an  ambassador.  It  was  supposed  that  this  rank  would  give 
our  delegates  greater  prominence  and  usefulness,  but  it  proved 
a pure  fiction,  and  our  Government  might  well  have  avoided 
as  a democracy  setting  an  example  to  the  monarchies  of  the 
world  of  the  cultivation  of  rank  and  personal  distinction  among 
delegates,  who  should  be  in  name,  as  they  were  in  fact,  on  an 
equality.  The  only  effect  of  their  high  rank  was  to  cause  some 
inconvenience  to  the  host  in  the  seating  at  dinner  parties. 

Thirty  out  of  the  forty-four  nations  at  the  Conference  sent 
no  delegates  of  ambassadorial  rank,  and  all  were  upon  the  same 
footing  in  respect  to  their  rights  in  the  sessions. 

The  first  delegate  was  chairman  of  his  delegation,  and 
expressed  authoritatively  the  attitude  of  his  Government 
whether  he  was  an  ambassador,  as  in  the  case  of  Marschall  von 
Bieberstein,  of  Germany,  a simple  plenipotentiary,  as  in  the 
case  of  Mr.  Beldiman,  of  Roumania,  or  a charge  d’affaires,  as 
in  the  case  of  M.  Gil  Fortoul,  of  Venezuela.  The  division  into 
plenipotentiaries  and  non-plenipotentiaries  would  seem  to  be 
adequate,  and  as  the  rank  of  ambassador  failed  to  carry  with 
it  any  additional  privilege,  it  is  difficult  to  understand  the  rea- 
son for  its  creation.  If  it  be  said  that  a former  ambassador 
might  feel  ill  at  ease  as  a simple  plenipotentiary,  the  con- 
clusive answer  is  that  Dr.  Andrew  D.  White  was  not  merely  a 
former,  but  actual  ambassador  to  Berlin  at  the  time  of  his 
designation  as  plenipotentiary  at  The  Hague,  and  it  is  also  a 
fact  that  other  ambassadors  represented  their  countries  as 
plenipotentiaries  at  The  Hague  without  any  evidence  of  incon- 
venience. But  if  it  be  desirable  that  the  first  delegate  be  an 
ambassador,  there  seems  to  be  no  reason  why  other  members 
of  the  delegation  should  be  ambassadors,  and  the  division  of 
plenipotentiaries  within  one  and  the  same  delegation,  as  in 
the  American  delegation  at  the  Second  Conference,  does  not 
seem  advisable.  And  in  this  connection,  it  may  be  remarked 
that  accrediting  naval  and  military  delegates  as  plenipotenti- 
aries, whereas  most  of  their  associates  were  technical  dele- 
gates, without  full  powers,  does  not  seem  to  have  given 


172 


THE  HAGUE  PEACE  CONFERENCES 


them  any  greater  influence  with  the  Conference,  or  with  their 
associates. 

Alongside  of  the  official  delegates,  there  were  present  at  both 
conferences  private  persons  interested  in  the  success  of  the 
Conference,  and  who  at  times  contributed  not  a little  to  its 
success.  From  Dr.  White’s  Autobiography,^  I quote  the  fol- 
lowing entry,  concerning  the  First  Conference: 

The  peace  people  of  all  nations,  including  our  own,  are 
here  in  great  force.  I have  accepted  an  invitation  from  one 
of  them  to  lunch  with  a party  of  like  mind,  including  Baroness 
von  Suttner,  who  has  written  a brilliant  book,  Die  Waffen 
Nieder,  of  which  the  moral  is  that  all  nations  shall  immediately 
throw  down  their  arms.  Mr.  Stead  is  also  here,  vigorous  as 
usual,  full  of  curious  information,  and  abounding  in  suggestions. 

At  the  Second  Conference,  the  Baroness  was  a welcome  and 
distinguished  visitor,  and  Mr.  William  T.  Stead  was  not  only 
influential,  but  helpful,  during  the  entire  four  months  of  the 
Second  Conference.  His  interest  in  the  peace  movement  and 
cause  which  he  has  championed  for  years  has  not  diminished, 
and  he  placed  himself  wholly  at  the  disposition  of  the  delega- 
tions and  delegates  from  the  beginning  to  the  end  of  the  Con- 
ference. Simple  citizen  as  he  was,  he  was  familiar  with  the  work 
of  the  Conference  in  all  its  details,  and  enjoyed  more  personal 
influence  with  many  of  the  delegates  than  did  His  Excellency 
the  President. 

The  Second  Conference,  like  the  First,  desired  to  conduct 
its  proceedings  in  private,  but  decided  to  supply  certain  infor- 
mation to  the  public,  in  such  form  and  in  such  quantities  as 
not  to  interfere  with  the  orderly  course  of  its  deliberations. 
But  the  Conference  was  very  large,  and  it  might  well  happen 
that  delegates,  even  although  they  received  three  copies  of 
each  printed  document  might  not  be  fully  abreast  of  the  pro- 
ceedings. The  various  happenings  at  The  Hague  would  be 
unknown  to  them.  Mr.  Stead  established,  published,  and 
supplied  at  his  own  expense  to  the  members  of  the  Conference, 
a daily  chronicle  of  its  proceedings,  entitled  the  Courrier  de 


Vol.  II,  p.  260. 


THE  COMPOSITION  OF  THE  CONFERENCE 


173 


la  Conference  de  la.  Paix.  The  109  numbers  of  this  journal 
dealt  with  all  phases  of  the  Conference,  including  the  official 
and  social  life,  contained  accoimts  of  the  meetings,  abstracts  of 
reports,  and  at  times  the  full  text  of  important  addresses.  In 
addition,  it  conveyed  a vast  amount  of  interesting  and  related 
information  concerning  the  history  of  doctrines  presented  to 
and  discussed  by  the  Conference,  and  in  a lighter  vein,  gathered 
up  and  preserved  the  floating  witticisms  and  reproduced  the 
caricatures  with  which  the  press  of  Europe  teemed.  Pictures 
of  the  delegates  and  of  the  delegations,  sketches  of  important 
personahties,  found  an  appropriate  place  in  the  columns  of  the 
journal,  and  it  is  not  too  much  to  say  that  the  Courrier  de  la 
Conference  gives  the  best  daily  picture  of  the  Conference,  its 
hopes,  its  fears,  and  its  actual  work,  which  is  likely  to  appear. 
In  no  small  sense  of  the  word,  Mr.  Stead  was  a co-worker  with 
the  official  delegates,  and  he  may  not  be  inaptly  called  a dele- 
gate at  large. 

3.  Formal  and  Informal  Addresses  at  the  Conference 

It  may  be  interesting  to  consider  briefly  the  character  of  the 
addresses  made  at  the  Conference,  in  order  that  a clearer  idea 
may  be  gained  of  the  assembly,  and  of  the  manner  in  which 
projects  were  presented  and  justified, — indeed  forced  upon 
the  attention  of  the  delegates.  The  RSglement  provided  that 
projects  should  be  presented  to  the  Conference,  printed,  and 
distributed,  before  they  were  discussed,  and  this  rule  was 
adhered  to.  Amendments  were  indeed  presented  and  ac- 
cepted in  the  course  of  the  sessions,  but  discussion  did  not  take 
place  upon  original  propositions  until  they  had  been  printed 
and  distributed  to  the  members.  The  addresses  therefore 
would  naturally  fall  into  two  classes;  first,  formal  and  care- 
fully prepared  orations,  in  the  nature  of  essays;  and,  second, 
unprepared  and  impromptu  speeches  delivered  in  the  course  of 
debate,  either  upon  an  original  proposition,  a proposed  amend- 
ment, or  a criticism  of  the  subject  under  immediate  discussion. 
The  formal  addresses  were  read  from  written  copies,  such  as  the 


174 


THE  HAGUE  PEACE  CONFERENCES 


opening  addresses  of  the  Dutch  Minister  of  Foreign  Affairs, 
and  the  President  of  the  Conference.  The  various  chairmen 
usually  read  their  addresses,  although  that  was  not  the  case 
with  M.  de  Martens,  who  spoke  freely  and  without  notes. 
The  remarkable  addresses  of  Baron  Marschall  von  Bieberstein, 
in  which  he  rejected  arbitration  with  reserves,  but  promised  to 
consider  sans  parti  pris  the  arbitration  of  carefully  selected 
lists  of  subjects,  and  his  later  address  opposing  the  carefully 
devised  and  acceptable  project  of  certain  specified  subjects, 
were  documents  prepared  with  great  care  and  read  from  man- 
uscript. Mr.  Choate’s  elaborate  argument  for  the  immunity 
from  capture  of  unoffending  private  property  of  the  enemy 
upon  the  high  seas,  was  likewise  read.  The  admirable  address 
of  General  Porter  upon  the  limitation  of  force  in  the  collection 
of  contract  debts,  was  a set  speech,  although  the  first  part  of  it 
was  delivered  without  notes.  Dr.  Drago  read  his  various 
addresses,  and  the  same  is  true  of  M.  Barbosa,  although  his 
unpremeditated  reply  to  M.  de  Marten’s  criticism  of  a previous 
address  as  savoring  of  politics,  was,  in  the  opinion  of  many, 
not  only  M.  Barbosa’s  masterpiece,  but  was  a model  of  par- 
liamentary debate.  From  the  many  set  addresses  delivered 
at  the  Conference,  I take  the  liberty  of  quoting  in  full  the 
address  of  M.  Larreta,  on  the  International  Court  of  Prize, 
which  is  not  only  a model  in  itself,  but  expresses  the  attitude 
of  a newcomer  in  an  international  conference.  It  was  so 
frequently  interrupted  by  applause,  and  was  so  thoroughly 
enjoyed  by  the  Conference,  that  its  selection  as  a type  of  the 
formal  address  can  hardly  be  said  to  be  a personal  matter: 

The  Argentine  Delegation  will  unreservedly  vote  for  the 
project  drawn  up  by  the  Committee  of  Examination,  but  we 
must  first  set  forth  the  reasons  for  which  we  acquiesce. 

We  believe  that  the  prize  court  will  represent  an  important 
step  forward  for  the  double  fact  that  it  will  superpose,  so  to 
speak,  the  awards  of  an  impartial  tribunal  upon  the  more  or 
less  interested  appreciations  of  the  belligerents,  and  that  in 
addition  it  will  be  the  first  international  jurisdiction  created 
by  the  civilized  world.  I will  even  add  that  in  our  opinion  a 
court  of  this  nature  becomes  at  this  time  not  only  a desirable 
progress,  but  also  an  indispensable  institution. 


THE  COMPOSITION  OF  THE  CONFERENCE 


175 


The  Conference  is  engaged  in  establishing  the  legislation 
of  maritime  warfare  after  ascertaining  and  determining  some 
points  of  contact,  that  is  to  say,  the  principles  and  interest 
which,  in  this  respect,  are  common  to  all  the  civilized  nations. 
I am  well  aware  that  we  should  not  go  very  far  yet  on  the  path 
that  has  been  opened  to  us.  Just  as  we  do  not  think  of  modify- 
ing in  a fortnight  our  warlike  civilization,  we  will  not  draw 
up  the  final  code  of  maritime  warfare  in  the  course  of  this  Con- 
ference. But  the  principles  here  established  will  none  the  less 
mean  a marked  advance  over  those  of  the  Paris  Congress  which 
still  prevail  in  the  matter. 

It  is  true  that  all  legislation  demands  a court  for  its  enforce- 
ment, if  I may  be  permitted  to  condense  in  this  phrase  the  elo- 
quent speech  of  His  Excellency  Mr.  Bourgeois  on  compulsory 
arbitration.  On  the  other  hand,  the  converse  proposition  is 
no  less  true.  Every  court  must  needs  lean  on  precise  legislation. 
This  is  why  I venture  to  predict  that  when  the  prize  court  is 
once  created  all  the  Signatory  States  will  take  it  to  heart  to 
concert  for  the  purpose  of  completing  maritime  warfare  legisla- 
tion and  supplying  its  deficiencies. 

I have  nothing  more  to  say  on  this  question,  especially 
after  the  statement  laid  before  the  commission  by  its  eminent 
reporter.  But  knowing  that  the  great  difficulty  met  by  the 
Committee  of  Examination  was  in  regard  to  the  mode  of 
organization  of  the  tribunal,  I wish  to  offer  some  declarations 
in  this  respect. 

When  the  question  was  about  the  permanent  court  of  arbi- 
tration my  colleague.  His  Excellency  M.  Saens-Pena,  declared 
that  in  his  opinion  the  best  basis  of  representation  for  each 
country  was  found  in  its  aggregate  foreign  trade.  We  believe, 
indeed,  that  when  one  criterion  is  considered,  there  is  none 
better  for  the  appreciation  of  the  comparative  capacity  of 
the  States  from  an  international  standpoint.  But  we  also  know 
that  this  criterion  is  not  any  more  essentially  absolute  than 
mathematically  accurate.  As  a matter  of  fact,  all  statistics 
are  inaccurate,  as  much  on  account  of  the  imperfect  methods 
used  as  by  reason  of  the  patriotic  sentiment  which  induces  the 
statisticians  to  increase  the  figures  in  favor  of  their  country. 
It  would  thus  be  well  in  seeking  to  establish  the  representative 
coefficient  of  each  nation  to  complete  the  data  of  foreign  trade 
taken  as  a basis  with  those  taken  from  population,  military 
and  naval  power,  length  of  seacoast  and  land  boundary,  not 
only  of  the  country  itself,  but  of  the  neighboring  countries; — 
m fine  with  all  the  physical  and  moral  factors  which  enhance 
or  restrict  the  relative  influence  of  nations. 

For  the  present,  and  as  an  approximate  solution,  we  shall 
consider  it  sufficient,  according  to  the  declarations  made  by 
His  Excellency  M.  Lammasch,  that  in  framing  the  present 


176 


THE  HAGUE  PEACE  CONFERENCES 


project,  the  tonnage  of  merchant  vessels,  as  well  as  the  power 
of  war  vessels,  shall  have  been  taken  into  consideration,  besides 
the  amount  of  foreign  trade.  We  accept  the  position  assigned 
to  the  Argentine  Republic  in  the  apportionment  of  judges,  not 
only  because  we  believe  in  the  good  faith  which  determined  it 
and  which  in  fact  is  not  far  from  the  truth,  but  also  because 
we  have  looked  upon  the  project  not  so  much  as  a problem  in 
arithmetic  as  an  institution  of  confidence  and  harmony.  [Ap- 
plause.] 

The  Argentine  Republic  may  have  been  entitled  to  a higher 
rank.  We  now  lead  the  whole  world  in  the  export  of  cereals. 
Our  annual  foreign  trade  represents  over  five  hundred  francs 
per  capita,  the  highest  figure  known;  and  again  our  navy  exceeds 
eighty  thousand  tons,  which  is  a high  figure  for  a State  of  the 
South  American  Continent.  But,  granting  that  some  error 
may  have  crept  into  the  appreciation  of  our  relative  impor- 
tance, and  that  we  may  be  entitled  to  a slightly  longer  represen- 
tation than  that  assigned  to  us,  this  is  a small  sacrifice  which 
we  readily  agree  to  in  homage  to  this  great  endeavor  of  law  and 
equity.  [Applause.] 

However,  gentlemen,  patriotism  is  still  stronger  than  the 
love  of  peace,  and  I need  not  say  that  while  examining  the 
project,  we  never  for  an  instant  lost  sight  of  the  interests  of 
our  country.  In  my  opinion,  these  interests  find  a complete 
safeguard  in  the  Swedish  proposition  adopted  by  the  Committee 
of  Examination.  Each  belligerent  will  always  have  a judge. 
We  consider  this  sufficient,  for  if  we  should  be  involved  in  war, 
if  so  great  a calamity  ever  befall  our  country,  we  should  then 
hold  in  the  prize  court  the  same  status  as  the  other  belligerent; 
we  should  all  be  equal  before  law  and  equity.  I mean  enjoying 
the  same  equality  which  is  inseparable  from  sovereignty. 

And  since  I have  uttered  the  word,  permit  me  to  add  that 
while  spontaneously,  accepting  this  convention  we  will  put 
forth  in  the  most  striking  manner  the  unrestricted  sovereignty 
enjoyed  by  the  Argentine  Republic.  This  is  what  brought 
us  here;  to  cooperate  without  humility  but  without  pride  in 
the  endeavor  of  universal  justice.  Without  humility,  but  with- 
out pride,  for  while  we  highly  appreciate  the  honor  of  sitting  in 
this  assembly,  we  have  in  return,  by  being  present,  given  it 
the  splendor  and  the  power  of  a world’s  meeting. ‘ [Applause.] 

Turning  now  to  the  less  formal  addresses,  it  may  be  said 
that  Mr.  Choate  was  peculiarly  happy  in  his  extempora- 
neous remarks,  which,  although  delivered  in  English,  were 
understood  by  a large  part  of  the  audience,  and  which,  in 
translated  form,  were  admired  by  all.  His  remarks  on  the 

'La  Deuxieme  Conf4rence  Internationale  de  la  Paix,  1907,  vol.  II,  First 
Commission,  2d  Session,  September  10,  1907. 


THE  COMPOSITION  OP  THE  CONFERENCE 


177 


prize  court  resulted  in  the  establishment  of  that  institution, 
and  although  later  reduced  to  writing,  they  were  delivered 
without  notes,  in  that  happy,  off-hand  manner  born  of  famili- 
arity with  the  court.  In  ready  and  incisive  speech  in  the 
nature  of  a parliamentary  debate,  no  member  shone  with 
greater  luster  than  M.  Bourgeois,  and  Baron  Marschall  von 
Bieberstein,  who,  in  a few  trenchant  phrases,  laid  bare  the 
argument  of  his  opponent,  and  subjected  it  to  ridicule,  if 
he  did  not  wholly  discredit  it.  In  the  latter  days  of  the  Con- 
ference, M.  Renault  displayed  marvelous  and  unexpected 
readiness  and  aptitude  in  debate,  and  his  replies  to  Baron 
Marschall  von  Bieberstein’ s arguments  against  arbitration  are, 
perhaps,  the  best  unpremeditated  debating  addresses  of  the 
Conference.  The  president,  amid  the  applause  of  the  Confer- 
ence, stated  that  addresses  would  be  limited  to  ten  minutes, 
but  this  regulation  was  “ more  honored  in  the  breach  than  the 
observance.”  Mr.  Choate’s  argument  in  favor  of  the  immu- 
nity of  private  property,  occupied  more  than  an  hour  in  its 
delivery,  and  in  this  respect  at  least,  M.  Barbosa  followed  in 
the  footsteps  of  Mr.  Choate,  for  if  no  one  address  exceeded 
this  limit,  several  of  M.  Barbosa’s  approached  it.  But  these 
lengthy  addresses  were  interspersed  with  shorter  and  spright- 
lier  ones,  and  the  element  of  humor  was  not  absent.  For 
example,  Mr.  Choate  said,  in  replying  to  Marschall  von  Bieber- 
stein’s  platonic  devotion  to  arbitration: 


I should  like  to  say  a few  words  in  reply  to  the  important 
discourse  delivered  by  the  First  Delegate  of  Germany,  with  all 
the  deference  and  regard  to  which  he  is  justly  entitled  because 
of  the  mighty  empire  that  he  represents,  as  well  as  for  his  own 
great  merits  and  his  unfailing  personal  devotion  to  the  consid- 
eration of  the  important  subjects  that  have  arisen  before  the 
Conference.  But  with  all  this  deference,  it  seems  to  me  that 
either  there  are,  in  this  Conference,  two  First  Delegates  of  Ger- 
many or,  if  it  be  only  the  one  whom  we  have  learned  to  recognize 
and  honor,  he  speaks  with  two  different  voices.  Baron  Mar- 
sphall  is  an  ardent  admirer  of  the  abstract  principle  of  arbitra- 
tion and  even  of  obligatory  arbitration,  and  even  of  general 
arbitration  between  those  whom  he  chooses  to  act  with,  but 
when  it  comes  to  putting  this  idea  into  concrete  form  and  prac- 


178 


THE  HAGUE  PEACE  CONFERENCES 


tical  effect  he  appears  as  our  most  formidable  adversary.  He 
appears  like  one  who  worships  a divine  image  in  the  sky,  but 
when  it  touches  the  earth,  it  loses  all  charm  for  him.  He  sees 
as  in  a dream  a celestial  apparition  which  excites  his  ardent 
devotion,  but  when  he  wakes  and  finds  her  by  his  side  he  turns 
to  the  wall,  and  will  have  nothing  to  do  with  her. 

General  Porter’s  single  sentence  in  reply  to  Lord  Reay, 
of  the  British  delegation — Depuis  la  politique  demode  de 
Marcy,  le  gouvernement  des  Etats-Unis  a acquis  de  I’experi- 
ence  et  pr^f^re  aujourd’hui  la  politique  plus  moderne  de 
Roosevelt* — was  as  effective  and  more  pointed  than  an  elab- 
orate reply. 

A couple  of  incidents,  taken  respectively  from  the  First 
and  Second  Conferences,  as  well  as  a single  unofficial  utterance, 
will  show  the  humor  both  within  and  without  the  Confer- 
ence, and  suggests,  if  it  does  not  prove,  that  sprightliness  is  not 
inconsistent  with  gravity  and  enterprises  of  great  pith  and 
moment.  The  first  is  taken  from  Mr.  White’s  Autobiography.* 

Count  Zanini,  the  Italian  minister  and  delegate  here,  gave 
me  a comical  account  of  two  speeches  in  the  session  of  the  first 
section  this  morning;  one  being  by  a delegate  from  Persia, 
Mirza  Riza  Khan,  who  is  minister  at  St.  Petersburg.  His 
Persian  Excellency  waxed  eloquent  over  the  noble  qualities  of 
the  Emperor  of  Russia,  and  especially  over  his  sincerity  as 
shown  by  the  fact  that  when  his  Excellency  tumbled  from  his 
horse  at  a review,  his  Majesty  sent  twice  to  inquire  after  his 
health.  The  whole  effect  upon  the  Conference  was  to  provoke 
roars  of  laughter. 

The  humor  of  the  incident  was  enhanced  by  the  fact  that 
His  Persian  Excellency  was  utterly  unconscious  of  the  absurd- 
ity of  the  situation.  The  second  incident  is  set  forth  by  Mr. 
John  W.  Foster,  who,  as  a member  of  the  Chinese  delegation, 


* It  is  impossible  adequately  to  translate  General  Porter’s  happy  French, 
but  a literal  rendering  of  it  is  as  follows:  “Since  the  old  fashioned 
policy  of  Marcy,  the  Government  of  the  United  States  has  gained  expe- 
rience and  now  prefers  the  more  modern  policy  of  Roosevelt.” — La  Deux- 
i^me  Conf4rence  Internationale  de  la  Paix,  Actes  et  Documents,  Vol 
III,  Fourth  Commission,  9th  session,  p.  875. 

*Vol.  II,  p.  321. 


THE  COMPOSITION  OF  THE  CONFERENCE 


179 


is  most  competent  to  pass  upon  the  qualifications  of  his  col- 
league. 

The  military  delegate  of  China  established  a great  reputa- 
tion as  a wit,  notwithstanding  he  was  one  of  the  most  serious- 
minded  of  the  members  and  never  consciously  attempted  a joke. 
While  the  subject  of  the  formal  proclamation  of  war  was  under 
consideration,  he  asked  the  Commission  what  should  happen 
when  one  nation  declared  war  against  another  if  the  latter  did 
not  wish  to  fight.  At  another  session  when  the  same  subject 
was  under  discussion,  he  stated  that  he  regarded  it  as  important 
that  the  Conference  should  define  accurately  what  constituted 
a state  of  war,  for,  said  he,  my  country  has  had  its  navy  de- 
stroyed, its  ports  bombarded,  and  its  capital  occupied  by 
foreign  troops,  when  the  perpetrating  nations  declared  their 
acts  not  war,  but  only  expeditions,  referring  to  the  French 
hostilities  of  1885  and  the  allied  occupation  of  Peking  in  1900. 
The  only  answer  he  received  to  his  inquiries  from  the  Commis- 
sion was  a hearty  laugh  from  the  delegates,  who  regarded  them 
as  sallies  of  wit  or  sarcasm  on  the  part  of  the  celestial  member. 

The  last  specimen  is  taken  from  Dr. White’s  Autobiography,’ 
and  narrates  an  experience  with  the  First  Conference  which 
might  be  matched  by  others,  only  less  interesting,  from  the 
Second.  Under  date  of  June  4,  1899,  Mr.  White  says : 

We  have  just  had  an  experience  which  “adds  to  the  gaiety 
of  nations.”  Some  days  since,  representatives  of  what  is  called 
“the  Young  Turkish  party”  appeared  and  asked  to  be  heard. 
They  received,  generally,  the  cold  shoulder,  mainly  because 
the  internal  condition  of  Turkey  is  not  one  of  the  things  which 
the  Conference  was  asked  to  discuss;  but  also  because  there  is 
a suspicion  that  these  “Young  Turks”  are  enabled  to  live  in 
luxury  at  Paris  by  blackmailing  the  Sultan,  and  that  their  zeal 
for  reform  becomes  fervid  whenever  their  funds  run  low,  and 
cools  whenever  a remittance  comes  from  the  Bosphorus.  But 
at  last  some  of  us  decided  to  give  them  a hearing,  informally; 
the  main  object  being  to  get  rid  of  them.  At  the  time  appointed, 
the  delegation  appeared  in  evening  dress,  and,  having  been 
ushered  into  the  room,  the  spokesman  began  as  follows,  very 
impressively; 

“Your  Excellencies,  ve  are  ze  Young  Turkeys.” 

This  was  too  much  for  most  of  us,  and  I think  that,  during 
our  whole  stay  at  The  Hague  thus  far,  we  have  never  under- 
taken anything  more  difficult,  physically,  than  to  keep  our  faces 
straight  during  the  harangue  which  followed. 

‘ Vol.  II,  p.  288. 


180 


THE  HAGUE  PEACE  CONFERENCES 


4.  The  Social  Side  of  the  Conference 

Turning  now  to  the  delegates  as  individuals,  rather  than  as 
members  of  the  Conference,  a matter  that  presented  itself,  and 
which  was  of  great  importance  to  some,  was,  how  are  these 
three  hundred  persons  to  get  acquainted?  That  was  a ques- 
tion which  time  would  solve,  for  day  by  day,  the  delegates 
learned  to  know  each  other,  and  to  lay  the  foundations  for 
pleasant  and  life-long  friendships.  In  his  work  on  the  First 
Conference,  Mr.  Holls  states  that 

One  of  its  pleasantest  features  was  certainly  the  daily  lunch- 
eon at  the  House  in  the  Wood,  sumptuously  served,  and  afford- 
ing an  opportunity  of  daily  intimate  and  unrestrained  personal 
intercourse  and  acquaintance,  the  value  of  which  can  hardly 
be  overestimated.  The  grouping  of  the  various  delegates  at 
the  luncheon  tables  changed  from  day  to  day,  with  the  result 
that  rarely  if  ever  has  a gathering  of  this  size  and  character 
been  attended  with  such  complete  personal  acquaintance  among 
all  the  members,  even  those  whose  duties  and  tastes  were  most 
diverse.* 

The  size  of  the  Second  Conference  rendered  it  difficult  to 
provide  a daily  entertainment  of  this  kind,  for,  while  it  was 
possible  to  furnish  quarters  in  which  the  delegates  of  twenty- 
six  states  could  break  bread  together,  it  was  difficult  to  find  a 
room  in  which  the  representatives  of  forty-four  states  could 
seat  themselves  at  table,  and  indulge  in  social  intercourse. 
The  Dutch  Government  was  no  less  hospitable  in  1907  than  in 
1899,  but,  in  lieu  of  a dining-room,  provided  a free  lunch 
counter,  or  buffet,  in  the  second  story  of  the  Binnenhof, 
where  light  refreshments  were  served  to  the  various  delegates, 
before  and  after  the  afternoon  sessions.  Simple  as  was  the 
fare,  the  idea  was  excellent,  for  it  gave  the  delegates  a meeting 
place.  Many  a friendship  was  formed  over  a sandwich  and  cup 
of  tea,  and  many  an  important  proposition  was  discussed  and 
settled  in  the  smoking  of  a cigar, 

But  this  natural  way  of  meeting  your  fellow-delegate  did 
not  satisfy  the  requirements  of  diplomatic  etiquette,  for 


' Holls’  Peace  Conference,  p.  323. 


THE  COMPOSITION  OP  THE  CONFEBENCE 


181 


delegates  and  their  families  must  get  acquainted  in  a more 
formal  way.  As  it  seemed  impossible  or  inconvenient  for 
the  delegates  to  call  in  person  upon  each  other,  and  lay  the 
foundations  of  friendship  by  an  actual  exchange  of  visits,  a 
method  was  devised  which  introduced  the  delegates  without  the 
embarrassment  of  a personal  interview. 

In  an  unpublished  article  on  the  Second  Conference,  Mr. 
John  W.  Foster,  who  is  an  authority  on  diplomacy,  and  well 
versed  in  its  intricacies,  says : 

It  was  a perplexing  question  for  the  resident  diplomatic 
body  to  determine  how  these  gentlemen  were  to  exchange 
their  official  calls  or  to  become  acquainted  with  each  other. 
After  grave  deliberations  it  was  decided  that  on  the  day 
before  the  meeting  of  the  Conference  each  member  of  a 
delegation  was  to  leave  his  card  upon  all  the  members  of  the 
other  delegations,  also  upon  all  the  Palace  officials  and  the  heads 
of  the  different  departments  of  the  Dutch  government,  includ- 
ing the  wives.  Hence  on  that  day  the  streets  of  The  Hague 
and  of  Scheveningen  were  full  of  automobiles  and  carriages, 
dashing  about  in  hot  haste  in  all  directions,  with  the  secretaries 
of  the  respective  delegations  leaving  handsful  of  cards  at  every 
stopping  place.  After  these  perfunctory  card  visits  each  mem- 
ber of  the  Conference  was  supposed  to  have  made  the  acquaint- 
ance of  his  colleagues.  My  secretaries  reported  that  in  that 
one  afternoon  they  had  deposited  1100  cards,  and  it  was  esti- 
mated that  a total  of  95,836  cards  had  been  distributed  by  and 
to  the  delegates  and  officials. 

The  diplomatic  proprieties  having  been  complied  with,  the 
Ehitch  Government,  as  well  as  the  individual  delegates,  pre- 
pared a series  of  official  and  unofficial  receptions,  more  wear- 
ing and  tiresome  to  many  of  the  delegates  than  the  labors  of 
the  Conference. 

Of  the  official  and  unofficial  entertainments  to  the  members 
of  the  First  Conference,  Mr.  Holls,  a participant  and  sur- 
vivor, wrote  as  follows: 

On  the  evening  of  May  24,  Their  Majesties  the  Queen  of 
the  Netherlands  and  the  Queen  Mother  gave  a grand  soiree  in 
honor  of  the  Conference  at  the  Royal  Palace  at  The  Hague. 
Besides  the  members  of  the  Conference,  the  Diplomatic  Corps 
and  the  entire  court  society  of  The  Hague  had  been  invited, 
and  the  scene  was  one  of  great  brilliancy.  Before  the  general 


182 


THE  HAGUE  PEACE  CONFERENCES 


reception  the  members  of  the  Conference  were  individually 
presented  to  Their  Majesties,  who  spoke  to  each  of  them  most 
gracious  words  of  welcome.  On  July  6,  Their  Majesties  gave 
a state  dinner  in  honor  of  the  Conference  at  the  Royal  Palace 
in  Amsterdam,  the  guests  being  conveyed  to  and  from  Amster- 
dam by  special  train.  At  this  occasion  the  members  were 
again  presented  to  Their  Majesties,  who  congratulated  them 
upon  the  progress  of  their  work,  and  after  the  dinner  Queen 
Wilhelmina  proposed  the  toast  to  the  health  of  all  the  Sov- 
ereigns and  heads  of  state  represented  at  the  Conference.  In 
response  Baron  de  Staal  proposed  the  health  of  Their  Majesties, 
which  toast  it  is  needless  to  say  was  received  with  great  enthu- 
siasm. 

On  May  27  the  Burgomaster  and  Municipal  Council  of  The 
Hague  gave  a grand  concert  to  the  Conference,  in  the  Hall  of 
Arts  and  Sciences,  and  on  June  17  the  Netherlands  Government 
gave  a musical  and  artistic  festival,  the  climax  of  which  was 
an  historical  dance  illustrating  the  costumes  of  the  various 
Dutch  provinces.  A great  floral  and  equestrian  fete  and  contest 
at  Haarlem  on  June  4 was  also  given  in  honor  of  the  Conference, 
and  will  remain  a most  beautiful  recollection  for  all  who  were 
privileged  to  take  part.  The  same  is  true  of  the  grand  concert 
and  ball  at  Scheveningen,  given  by  the  Soci6t4  des  Bains  de 
Mer  de  Sch6veningue  on  June  12. 

Besides  these  entertainments  it  is  needless  to  add  that 
official  society  at  The  Hague  was  profuse  in  its  social  attentions, 
and  the  same  is  true  of  the  Diplomatic  Corps,  whose  members 
vied  with  each  other  in  making  the  stay  of  their  visiting  col- 
leagues agreeable.  ‘ 

Dr.  Andrew  D.  White’s  Autobiography  abounds  with  refer- 
ences to  public  and  private  receptions,  and  he  concludes  with 
the  statement  that  Holland  was  “a  princely  host.”  There  is 
no  reason  to  believe  that  the  Holland  of  1907  differed  in  this 
respect  from  the  Holland  of  1899,  for  the  most  exalted  as 
well  as  the  lesser  officials  of  the  Dutch  Government  vied  with 
each  other  in  their  desire  and  effort  to  make  the  sojourn  of  the 
members  of  the  delegation  as  pleasant  as  the  work  of  the  Con- 
ference was  sure  to  be  memorable. 

The  Queen  twice  received  the  members  of  the  Conference 
at  the  Royal  Palace,  passing  from  delegation  to  delegation 
with  a pleasant  word  and  smile  for  delegation  and  delegate, 


' Holls’  Peace  Conference,  pp.  323-325. 


THE  COMPOSITION  OP  THE  CONFERENCE 


183 


and  Her  Majesty  likewise  entertained  the  first  delegates  at 
dinner  at  the  Royal  Palace  at  Amsterdam,  at  which  time  and 
place  she  graciously  distributed  to  the  first  delegates  refined 
and  beautifully  engraved  silver  medals,  struck  in  honor  of  the 
Second  Conference.  Her  Majesty  later,  through  the  Ministry 
of  Foreign  Affairs,  presented  medals  of  the  same  design,  differ- 
ing only  in  inscription,  to  the  various  plenipotentiaries  and  tech- 
nical delegates. 

The  birthdays  of  the  Queen  and  the  Queen’s  mother  occurred 
during  the  sessions  of  the  Conference,  and  the  Capital  City  of 
The  Hague  was  beautifully  decorated  and  illuminated  in  honor 
of  each  occasion. 

The  Dutch  Government  entertained  the  delegates  by  an  out- 
ing at  Rotterdam  and  its  charming  surroundings.  The  Coun- 
cil of  The  Hague  gave  a ball  at  Scheveningen,  at  which  the 
country  dances  of  Holland  were  exquisitely  executed. 

Private  hospitality  was  munificent,  whether  it  was  official 
or  of  a semi-official  character,  and  the  various  delegations 
represented  at  The  Hague  vied  with  each  other  in  lavish 
entertainment  of  their  colleagues.  The  American  delegation 
gave  four  entertainments  at  Scheveningen.  The  first  dele- 
gates were  dined  with  constant  and  embarrassing  regularity, 
so  that  many  evenings  of  the  week  were  given  over  to  social 
intercourse,  and  indeed  all  members  of  the  delegation,  irrespect- 
ive of  rank,  were  recipients  of  invitations  which  brought  them 
into  close  and  unofficial  contact  with  their  fellow-members. 
One  of  the  most  delightful  episodes  of  the  Conference  was  the 
invitation  extended  by  Belgium  to  the  delegates,  and  accepted 
by  them,  to  visit  Bruges  and  witness  an  elaborate  and  artistic 
representation  of  the  toison  d’or.  Indeed,  it  is  not  too  much 
to  say  that  the  delegates  at  The  Hague  were  almost  killed 
with  kindness. 

Not  only  were  the  delegates  feted,  but  their  wives  and 
the  members  of  their  families  visiting  The  Hague  were  the 
recipients  of  official  and  private  hospitality.  The  European 
delegations  were  not,  as  a rule,  accompanied  by  their  families, 
but,  little  by  little,  surreptitiously,  as  it  were,  they  were 


184 


THE  HAGUE  PEACE  CONFERENCES 


smuggled  into  The  Hague,  and  graced  the  official  dinners 
offered  by  the  various  delegations.  America — North,  Central 
and  South — showed  that  the  body  politic  is  based  upon  the 
family  tie,  and  the  American  delegates  were  often  accom- 
panied, not  merely  by  their  wives  and  children,  but,  in  some 
instances,  by  their  grandchildren.  The  ladies  added  not 
merely  to  the  social  charm,  but,  by  their  vivacity,  enlivened 
the  proceedings,  and  by  richness  of  color  of  their  elaborate 
and  fashionable  costumes  relieved  the  somber  of  the  evening 
broadcloth.  They  took  part  in  all  the  excursions,  and  their 
presence  in  the  gallery  at  the  plenary  sessions  of  the  Con- 
ference, and  at  the  closing  session  on  the  floor  of  the  House, 
broke  the  gravity  and  reserve  ordinarily  present  in  the  delibera- 
tions of  their  grave  and  reverend  signors.  However  much 
Pan-America  may  have  perplexed,  embarrassed,  and  at 
times,  astonished  the  Conference,  no  criticism  was  heard  of 
the  visiting  ladies,  and  it  is  safe  to  prophesy  that  the  Third 
Conference  will  see  the  European  delegates  surrounded  by  their 
families;  for,  if  a European  navigator  discovered  America,  the 
American  woman  has  conquered  Europe. 

As  the  Second  Conference  met  on  the  fifteenth  of  June, 
and  adjourned  on  the  eighteenth  of  October,  and  as  the  First 
Conference  spent  the  greater  part  of  the  month  of  July  at 
The  Hague,  the  American  delegation  celebrated  at  each  con- 
ference the  Fourth  of  July.  It  need  not  be  stated  that  the 
national  holiday  was  enthusiastically  observed,  but,  although 
the  reception  given  in  1907  in  the  Hotel  des  Indes  by  Dr.  and 
Mrs.  Hill  was  highly  enjoyable  and  successful,  and  presented 
the  rare  spectacle  of  the  nations  of  the  earth  meeting  for  one 
brief  moment  to  do  homage  to  the  young  Republic,  still,  it 
must  be  said,  that  the  celebration  of  1899  had  a propriety  and 
dignity  which  any  purely  social  gathering  must  needs  lack;  for 
the  Conference  of  1899  was  not,  as  has  been  shown,  an  unex- 
pected and  happy  inspiration,  although  it  was  in  a certain  sense 
of  the  word  unprecedented.  The  Hague  was  well  chosen  for 
its  place  of  meeting,  for  in  that  city  Grotius  lived  and  ’achieved 
distinction  before  faction  and  fanaticism  drove  him  an  exile 


THE  COMPOSITION  OF  THE  CONFERENCE 


185 


from  his  home  and  country,  graced,  as  he  says,  by  so  many  of 
his  labors.  In  the  little  town  of  Delft,  almost  within  sight  of 
The  Hague,  he  first  saw  the  light  of  day,  and  as  the  Conference 
itself  was  the  natural  outcome  of  his  life  and  labors,  and  as  our 
beloved  country  has  drawn  not  merely  some  of  its  institutions, 
but  its  ven,^  name — The  United  States — from  Holland,  it 
seemed  peculiarly  appropriate  that  the  American  delegation, 
in  celebrating  the  Fourth  of  July,  should  recall  with  gratitude 
the  founder  of  international  law,  and  the  instigator,  if  not  the 
initiator,  of  the  Conference.  Therefore,  on  June  6,  1899, 
Dr.  White  wrote  a private  letter  to  the  Secretary  of  State, 
suggesting 

that  our  American  delegation  be  authorized  to  lay  a wreath 
of  silver  and  gold  upon  the  tomb  of  Grotius  at  Delft,  not  only 
as  a tribute  to  the  man  who  set  in  motion  the  ideas  which, 
nearly  three  hundred  years  later,  have  led  to  the  assembling 
of  this  Conference,  but  as  an  indication  of  our  gratitude  to  the 
Netherlands  Government  for  its  hospitality  and  the  admirable 
provision  it  has  made  for  our  work  here,  and  also  as  a sign  of  good- 
will toward  the  older  governments  of  the  world  on  the  occasion 
of  their  first  meeting  with  delegates  from  the  new  world,  in  a 
conference  treating  of  matters  most  important  to  all  nations.' 

The  appeal  to  the  Secretary  of  State  was  not  in  vain,  for, 
as  is  well  known,  the  late  John  Hay  was  not  merely  a man  of 
affairs,  but  no  mean  craftsman  in  literature,  and  responsive 
to  literary  suggestion  and  tradition.  The  American  delega- 
tion was,  therefore,  authorized  to  carry  out  its  intention. 
The  wreath  as  authorized  and  prepared,  as  Dr.  White  says  in 
his  Autobiography, 

is  very  large,  being  made  up,  on  one  side,  of  a laurel  branch 
with  leaves  of  frosted  silver  and  berries  of  gold,  and,  on  the 
other,  of  an  oak  branch  with  silver  leaves  and  gold  acorns,  both 
boughs  being  tied  together  at  the  bottom  by  a large  knot  of 
ribbon  in  silver  gilded,  bearing  the  arms  of  the  Netherlands  and 
the  United  States  on  enameled  shields,  and  an  inscription  as 
follows : 


‘ Andrew  D.  White’s  Autobiography,  Vol.  p.  291. 


186 


THE  HAGUE  PEACE  CONFERENCES 


To  the  Memory  of  Hugo  Grotius; 

In  Reverence  and  Gratitude, 

From  the  United  States  of  America; 

On  the  Occasion  of  the  International  Peace  Conference  of 
The  Hague. 

July  4th,  1899. 


It  is  a superb  piece  of  work,  and  its  ebony  case,  with  silver 
clasps,  and  bearing  a silver  shield  with  suitable  inscription, 
is  also  perfect:  the  whole  thing  attracts  most  favorable  atten 
tion.' 

The  entry  of  July  Fourth  gives  in  briefest  form  the  accoun 
of  the  celebration; 

On  this  day  the  American  delegation  invited  their  colleagues 
to  celebrate  our  national  anniversary  at  the  tomb  of  Grotius, 
first  in  the  great  church,  and  afterward  in  the  town  hall  of  Delft. 
Speeches  were  made  by  the  minister  of  foreign  affairs  of  the 
Netherlands,  De  Beaufort;  by  their  first  delegate.  Van  Karne- 
beek;  by  Mr.  Asser,  one  of  their  leading  jurists;  by  the  burgo- 
master of  Delft;  and  by  Baron  de  Bildt,  chairman  of  the  Swed- 
ish delegation  and  minister  at  Rome,  who  read  a telegram  from 
the  King  of  Sweden  referring  to  Grotius’s  relations  to  the  Swed 
ish  diplomatic  service;  as  well  as  by  President  Low  of  Columbia 
University  and  myself:  the  duty  being  intrusted  to  me  of  laying 
the  wreath  upon  Grotius’s  tomb  and  making  the  address  with 
reference  to  it.  As  all  the  addresses  are  to  be  printed,  I shall 
give  no  more  attention  to  them  here.  A very  large  audience 
was  present,  embracing  the  ambassadors  and  principal  members 
of  the  Conference,  the  Netherlands  ministers  of  state,  professors 
from  the  various  universities  of  the  Netherlands,  and  a large 
body  of  other  invited  guests. 

The  music  of  the  chimes,  of  the  organ,  and  of  the  royal  choir 
of  one  hundred  voices  was  very  fine;  and,  although  the  day  was 
stormy,  with  a high  wind  and  driving  rain,  everything  went 
off  well. 

After  the  exercises  in  the  church,  our  delegation  gave  a 
breakfast,  which  was  very  satisfactory.  About  three  hundred 
and  fifty  persons  sat  down  to  the  tables  at  the  town  hall,  and 
one  hundred  other  guests,  including  the  musicians,  at  the  leading 
restaurant  in  the  place.  In  the  afternoon  the  Americans  gath- 

‘ Ibid.,  Vol.  II,  p.  326. 


THE  COMPOSITION  OF  THE  CONFERENCE 


187 


ered  at  the  reception  given  by  our  minister,  Mr.  Newell  and 
his  wife,  and  in  the  evening  there  was  a large  attendance  at 
an  "American  concert”  given  by  the  orchestra  at  the  great  hall 
in  Scheveningen.* 

It  is  a matter  of  regret  that  the  American  delegation  of 
1907  did  not  follow  the  admirable  precedent  set  by  the  delega- 
tion of  1899,  and  in  an  appropriate  manner,  on  the  Fourth  of 
July,  1907,  commemorate  John  Robinson  and  the  devoted 
band  of  pilgrims,  who,  fleeing  from  persecution,  found  a refuge 
in  Leyden,  and,  unwilling  to  expose  their  children  to  the 
trials  and  tribulations  of  warfare,  set  sail  on  the  22d  day  of  July, 
1620,  in  the  Speedwell  from  the  little  town  of  Delft  Haven, 
to  establish  in  an  unknown  world  and  under  novel  conditions, 
those  principles  of  liberty  and  of  righteousness  in  which 
America  was  conceived,  and  which,  if  it  be  not  recreant  to  the 
principles  of  the  founders,  will  strengthen  and  preserve  us  a 
nation  and  a power  for  good,  not  only  in  our  own  land,  but  in 
the  remotest  corners  of  the  earth. 


Andrew  D.  White’s  Autobiography,  Vol.  II,  pp.  327,  328. 


CHAPTER  V 


THE  NATURE,  ORIGIN  AND  PRACTICE  OF  INTER- 
NATIONAL ARBITRATION 

1.  Nature  and  Origin  of  Arbitration 

Before  undertaking  to  consider  and  discuss  in  detail  the  sub- 
ject of  arbitration  at  The  Hague  Conferences,  it  may  be  well  to 
premise  some  observations  upon  the  nature  and  theory  of 
arbitration  in  private  law,  and  to  illustrate  by  example  the 
process  by  which  arbitration  has  made  its  appearance  in  public 
law  as  the  favorite  method  of  settling  international  conflicts 
which  diplomacy  has  been  unable  to  adjust. 

The  fundamental  distinction  between  the  various  forms  of 
negotiation,  whether  it  be  conducted  through  the  ordinary 
channels  of  diplomacy  or  by  the  offer  of  good  offices  or  media- 
tion, and  arbitration  is  that  negotiation  suggests  compromise 
and  involves  the  wholesome  principle  of  give  and  take,  whereas 
arbitration  properly  and  strictly  considered  is  a judicial,  not 
a diplomatic  proceeding,  although  it  may  be  preceded  and  fol- 
lowed by  diplomacy  in  its  various  forms. 

The  fundamental  distinction  between  arbitration  and  a 
judicial  proceeding  strictly  so-called  is  that  the  resort  to  the 
former  is  voluntary,  whereas  the  resort  to  the  latter  may  be 
compulsory ; that  the  private  parties  decide  not  merely  whether 
they  will  arbitrate  a difficulty,  but  they  also  determine  the 
nature  and  extent  of  the  submission  and  select  the  person 
or  persons  to  whom  the  decision  of  the  difference  is  submitted. 
The  award  may  or  may  not  be  in  strict  accord  with  law  but 
it  determines  the  controversy,  because  the  parties  in  their 
submission  have  agreed  to  accept  the  award  as  final  under  the 
supposition  that  the  arbitrator  has  been  honest  even  although 
he  may  have  been  mistaken  in  bis  judgment. 

188 


INTERNATIONAL  ARBITRATION 


189 


A court,  on  the  other  hand,  is  the  instrument  of  the  state,  not 
the  creation  of  the  parties  litigant,  and  its  decision  binds  the 
partes  not  because  they  have  agreed  to  be  bound,  but  because 
the  state  imposes  its  will  upon  the  parties.  It  is  unnecessary 
to  add  that  the  judge  is  an  officer  of  the  state  and  is  not,  as  is 
the  arbitrator,  the  free  choice  of  the  parties  to  the  controversy. 
It  is  equally  elemental  that  the  judge  is  bound  by  his  oath  to 
administer  the  law  of  the  land,  whereas  the  arbitrator  is  free 
to  decide  the  controversy  according  to  the  terms  of  the  sub- 
mission, the  equity  of  the  case  or  the  dictates  of  his  own 
conscience.  The  distinction  between  the  award  of  an  arbi- 
ter and  the  judgment  of  a court  is  thus  sufficiently  clear — 
a distinction,  which  has  existed  from  the  days  of  Aristotle  who 
stated  that  “the  arbiter  looks  to  what  is  fair,  the  judge  to 
what  is  law.” 

In  Greek  private  law  arbitration  was  no  stranger,  and 
whereas  the  judge  was  required  to  interpret  the  law  strictly 
the  arbiter  might  decide  a case  freely  upon  its  merits,  and 
whereas  the  judge  was  appointed  by  law,  the  arbitrator  was 
selected  by  the  agreement  of  the  parties.  And  finally,  whereas 
an  appeal  lay  from  the  law  court,  there  was  no  appeal  from 
an  arbitral  award  because  by  custom  or  agreement  the  parties 
accepted  in  advance  the  finding  of  the  arbiter  as  conclusive 
of  the  controversy.  The  submission  to  arbitration,  the  com- 
protnis  of  international  law,  was  generally  a written  agree- 
ment to  which  was  annexed  an  undertaking  by  third  parties 
as  sureties  for  the  performance  of  the  agreement  in  all  its  parts. 

The  system  of  arbitration,  however,  with  which  the  modem 
world  is  familiar,  is  Roman,  not  Greek,  although  it  may  well 
be  that  the  system  of  arbitration  originally  obtaining  in  Rome 
was  modified  or  influenced  by  Greek  thought.  At  Rome,  as 
in  Greece,  the  essence  of  arbitration  is  the  voluntary  nature  of 
the  proceeding,  consisting  in  the  agreement  of  the  parties  to 
arbitrate,  in  the  terms  of  submission  and  the  selection  of  the 
arbiter  to  whom  is  intmsted  the  decision  of  the  case.  In  the 
first  place  the  parties  reach  an  agreement  (compromissum) 
and  bind  themselves  under  penalty  to  abide  by  the  award 


190 


THE  HAGUE  PEACE  CONFERENCES 


whether  it  be  to  perform  some  act  or  to  pay  a sum  of  money, 
whereupon  the  arbiter  formally  accepts  the  duty  imposed  upon 
him  by  the  agreement  of  the  parties  (receptum  arbitri).  A 
failure  to  accept  or  execute  the  award  is  a breach  of  the  con- 
tract of  the  parties  and  gives  rise  to  an  action  which  may  be 
enforced  by  the  court,  which,  however,  does  not  revise  the 
award  but  decrees  its  execution  unless  vitiated  by  fraud  or 
corruption. 

Roman  arbitration  appears  in  two  forms,  first  as  a legal 
proceeding,  recognized  and  prescribed  by  the  state  in  specified 
causes  of  action  in  which  the  arbiter  is  freer  than  the  judge  to 
do  justice  between  the  parties  by  invoking  the  spirit  rather 
than  in  following  the  letter  of  the  law.  In  other  words,  the 
judge  administers  the  law,  the  arbiter  does  equity.  In  the 
second  form,  arbitration,  although  recognized  by  the  law  is 
not  prescribed  by  it,  and  depends  solely  upon  the  parties  to  the 
controversy  whether  they  shall  settle  their  difficulty  by  a 
voluntary  proceeding  or  whether  they  shall  resort  to  the  law 
courts.  The  arbiter  in  this  case  not  only  administers  equity; 
he  reaches  a decision  according  to  the  judgment  of  a good  and 
conscientious  person.  It  is  this  latter  form  of  arbitration 
which  has  maintained  itself  in  our  modern  legal  systems  and 
which  has  furnished  the  basis  for  international  arbitration. 

The  judge  of  Rome  was  the  arbiter  of  the  private  citizen, 
and  the  voluntary  reference  to  arbitration  is  the  direct  ances- 
tor of  the  system  of  actions.  It  is  beyond  “the  shadow  of  a 
doubt,”  says  Dr.  Moyle, ^ “that  the  whole  Roman  system  of 
actions  tried  before  a judge  or  judges  took  its  origin  from  the 
custom  to  refer  disputes  to  arbitration.” 

The  earliest  judges  derived  their  judicial  authority,  such  as  it 
was,  not  from  the  state,  but  from  the  voluntary  submission  of 
the  parties:  and  Sir  H.  Maine  has  shown  (Ancient  Law.  pp.  375, 
etseq.),  by 'an  examination  of  the  earliest  Roman  civil  process, 
that  the  magistrate,  even  when  commissioned  by  the  state  for 
the  administration  of  justice,  preserved  the  memory  of  the 
actual  historical  source  of  his  functions  by  “ carefully  simulating 


‘ Moyle:  Imperatoris  lustiniani  Institutiones  (3d  ed.),  Vol.  I,  p.  635. 


INTERNATIONAL  ARBITRATION 


191 


the  demeanor  of  a private  arbitrator  casually  called  in.”  The 
later  Roman  jurists,  though  struck  by  the  similarity  in  procedure 
between  an  ordinary  action  and  a reference  to  arbitration,  were 
guilty  of  the  curious  anachronism  of  deriving  the  latter  from  the 
former;*  but  the  fact  is  that  action  grew  out  of  arbitration, 
and  the  judge  was  originally  only  an  unofficial  referee;  a fact 
of  which  traces  are  observable  throughout  the  legal  history 
of  Rome.  Thus,  no  action  could  validly  be  commenced,  still 
less  carried  through  to  judgment,  until  the  court  had  got  both 
parties  before  it:  for  arbitration  can  take  place  only  by  consent, 
not  by  a unilateral  act  of  either  of  them  without  the  other.  Still 
more  forcibly  are  we  reminded  of  the  mode  in  which  the  early 
judge  acquired  his  jurisdiction  by  the  vitality  of  the  rule  that 
no  judge  could  be  forced  upon  a party  of  whose  knowledge  and 
integrity  he  was  not  satisfied.^  Hence  too  the  limited  authority, 
as  we  should  deem  it,  of  the  Roman  judex;  he  has  no  “im- 
perium;”  he  cannot  compel  the  parties  to  any  act  or  forbear- 
ance; he  is  merely  a referee  whom  they  have  chosen,  and  in 
whose  appointment  the  magistrate  has  cooperated;  all  he  has  to 
do  is  to  decide  the  questions  submitted  to  him,  so  far  as  the  par- 
ties may  enable  him;  he  has  to  leave  to  them  the  realization 
(by  execution)  of  the  right  he  ascertains.  The  very  point  he 
has  actually  to  settle  is  at  first  kept  studiously  in  the  background, 
and  hidden  behind  a wager;  the  decision  is  not  an  order  or  injunc- 
tion, but  an  expression  of  opinion,  sententia,  pronuntiatio. 

In  England  we  know  from  actual  records  with  what  rapidity 
trial  by  jury  in  civil  causes,  though  in  most  cases  optional  only, 
superseded  the  more  barbarous  methods  of  compurgation,  ordeal, 
and  trial  by  battle,  and  that  this  was  largely  due  to  a sense  of 
the  greater  justice  and  reasonableness  of  the  new  system.  We 
can  hardly  doubt  that  upon  much  the  same  grounds  the  prac- 
tice of  arbitration  daily  gained  greater  favour  among  the  Ro- 
mans. When  political  authority  has  at  length  obtained  a firm 
footing,  the  magistrate  is  gradually  preferred  by  litigants  to 
a citizen  arbitrator,  perhaps  from  a conviction  of  his  greater 
wisdom  and  impartiality;  if  he  is  a king,  perhaps  too  because  his 
divine  descent  is  believed  to  confer  upon  him  a sense  of  right, 
and  a kind  of  knowledge,  above  his  merely  human  fellows. 
Finally,  the  judicial  function  is  recognized  as  appertaining  to  the 
state;  though  the  primitive  remedies  may  to  some  extent  sur- 
vive in  all  their  rudeness,  and  though  the  state  administration  of 
justice  may  still  more  widely  bear  traces  of  the  social  condition 
which  preceded  political  organization,  still  the  natural  mode  of 

* “ Compromissum  ad  similitudinem  iudiciorum  redigitur." 

’“Neminem,”  says  Cicero,  “voluerunt  maiores  nostri  non  modo  de  ex- 
istimatione  cuiusquam,  sed  ne  pecuniaria  quidem  de  re  minima  esseiudicem, 
nisi  qui  inter  adversaries  convenisset.”  Pro  Cluendo,  cap.  43. 


192 


THE  HAGUE  PEACE  CONFERENCES 


deciding  a dispute  is  to  go  to  the  magistrate,  and  rules  of  civil 
procedure  have  begun  to  assume  consistency.  Courts  have 
become  established;  their  mode  of  action  is  prescribed  by  law; 
any  attempt  to  evade  their  authority  by  recurring  to  other 
methods  of  obtaining  satisfaction,  save  in  certain  well  defined 
cases,  is  considered  a defiance  of  law,  and  a breach  of  the  peace.* 

There  are  thus  three  stages  in  the  development  of  the  Roman 
judicial  system:  (1)  the  private  litigant  submitted  his  con- 
troversy to  an  arbiter  of  his  own  choice  for  decision  according 
to  the  conscience  of  a good  and  impartial  man;  (2)  the  magis- 
trate or  judge  is  chosen  from  an  official  list  or  panel  is  preferred 
to  a citizen  arbitrator;  (3)  the  administration  of  justice  is 
regarded  as  the  duty  and  therefore  the  right  of  the  state,  and 
a judicial  system  is  prepared  for  and  imposed  upon  the  citizen. 

Is  not  the  same  unconscious  development  seen  in  the  growth 
of  arbitration  between  states?  As  independent  beings  they 
chose  arbiters,  the  pope  in  times  past,  a foreign  sovereign  in 
modern  times;  the  consciousness  of  the  defects  of  this  system 
in  which  the  individual  case  is  decided,  but  continuity  of  deci- 
sion is  wholly  lacking,  has  led  to  the  second  stage,  which 
dates  from  the  first  Conference,  namely,  the  appointment 
by  international  action  of  a panel  of  judges  from  which  the 
judges  forming  the  temporary  tribunal  are  chosen.  We 
stand  upon  the  very  threshold  of  the  third  and  final  devel- 
opment when  the  nations  as  a whole  determine  that  inter- 
national justice  is  the  province  of  the  international  com- 
munity and  constitute  a court  of  international  justice  to  which 
litigant  states  may  resort  in  conflicts  of  importance.  The 


' Moyle,  loc.  cit.,  635,  636. 

That  arbitration  was  a means  to  stay  self-help;  that  self-help  was  per- 
mitted if  arbitration  was  refused  or  the  award  was  uncomplied  with;  that 
the  judicial  system  of  Rome  was  developed  from  the  private  contract  of 
the  parties  to  arbitrate  (compromissum),  see  Jhering’s  Geist  des  Romi- 
schen  Rechts,  Vol.  I,  pp.  107,  et  seq.,  more  especially  pp.  168-176.  On 
the  subject  of  arbitration  in  Roman  law,  see  generally:  Matthiass’ 
Entwickelung  des  romischen  Schiedgerichts  (1888);  Robjds  Roman  Pri- 
vate Law,  Vol.  II,  pp.  320-322. 

For  a brief  account  of  the  development  of  the  Roman  judiciary  from 
private  arbitration,  see  Macy’s  Outlines  of  Roman  Law,  1884,  pp.  14-19. 


INTERNATIONAL  ARBITRATION 


193 


foundations  of  this  international  tribunal  are  already  laid ; its 
organization,  its  jurisdiction,  its  procedure  have  been  deter- 
mined, and  we  only  await  the  appointment  of  judges  in  order 
to  establish  the  court  of  arbitral  justice  in  which  the  nations 
of  the  world  may  obtain  justice  as  easily  and  readily  as  pri- 
vate suitors  in  national  courts  of  justice. 

Such,  in  brief,  seems  to  be  the  system  of  arbitration  under- 
stood and  practiced  in  Greece  and  Rome.  In  England,  not- 
withstanding the  jealousy  of  the  common  law,  and  contempt 
for  the  civil  law  in  all  its  forms,  arbitration  was  transplanted 
bodily  from  Rome,  and  flourishes  not  only  in  England  but 
wherever  the  English  language  is  spoken.'  Arbitration  is  like- 
wise recognized  in  the  modern  civil  law,  and  the  precedents 
of  Greece  and  the  Middle  Ages  show  how  admirably  fitted 
arbitration  was  and  is  for  the  solution  of  controversies  between 
nations  neither  having  nor  recognizing  a common  superior, 
and  how  easily  and  unconsciously  the  arbitration  of  private 
law  became  an  institute  of  public  law. 

In  ancient  times,  when  war  constituted  the  normal  state  of 
peoples  and  the  foreigner  was  everywhere  treated  as  an  enemy, 
arbitrations  were  necessarily  rare,  and  we  do  not  find  either  a 
general  system  or  harmonious  rules  governing  the  subject. 
There  were  a few  cases  of  arbitration  in  the  East  and  in  Greece, 
but  the  mode  of  procedure  was  not  suited  to  the  temperament 
of  the  people,  and,  after  the  peace  of  Rome  was  established,  with 
the  civilized  world  under  one  government,  there  was  no  place 
for  it,  since  arbitration  presupposes  a conflict  between  independ- 
ent states. 

In  the  Middle  Ages,  owing  to  the  peaceful  influence  of  the 
church,  arbitrations  were  more  frequent,  and  yet  their  influence 
was  far  from  producing  all  the  results  which  might  have  been 
expected,  perhaps  because  Europe  was  then  cflvided  into  a 

' An  early  and  much  esteemed  book,  the  Symboleography  of  one  William 
West,  appeared  in  the  very  century  of  the  English  Reformation,  and  its 
second  part  deals  fully  and  quaintly  with  arbitration.  In  order  to  show 
the  identity  between  private  and  international  arbitration,  both  in  sub- 
stance and  form,  I quote  in  the  Appendix,  pp.  77^776  a few  sections  from 
West,  dealing  with  the  compromis,  the  arbitrator  and  the  award. 

I owe  this  reference  to  The  Arbiter  in  Council  (1906),  to  which  exellent 
book  the  reader  is  referred. 


194 


THE  HAGUE  PEACE  CONFERENCES 


great  number  of  petty  states,  or  because  the  rude  manners  of 
the  period  were  intolerant  of  the  idea  of  conciliation. 

Later  history  does  not  present  many  cases  of  arbitration, 
for  the  ambition  of  princes  does  not,  any  more  than  did  that  of 
the  Roman  people,  adapt  itself  to  pacific  remedies  in  conflicts 
in  which  they  hoped  to  gain  an  advantage  by  force  of  arms. 
Absolute  monarchy  is  essentially  warlike;  it  rarely  turns  aside 
from  the  objects  which  it  pursues,  although  it  has  not,  as  Rome 
did,  either  forced  its  yoke  on  all  nations,  or  fallen  under  the 
combined  assaults  of  those  whom  it  has  sought  to  subjugate.' 

With  this  statement,  quoted  from  a work  of  great  merit, 
the  subject  of  arbitration  before  the  Jay  Treaty  of  1794  might 
be  dismissed,  because  it  is  only  from  this  date  and  the  impetus 
given  to  arbitration  as  a means  of  settling  international  dis- 
putes that  arbitration  may  be  said  to  have  made  its  appear- 
ance as  a systematic  means  of  settling  conflicts.  The  past  is, 
however,  important  because  it  furnishes  precedents  for  arbi- 
tration, and  in  so  far  justifies  the  theorist  by  enabling  him  to 
point  to  the  arbitration  of  concrete  cases.  We  can  easily 
discredit  a theory  as  Utopian  and  impracticable  as  long  as  it 
remains  in  the  realm  of  theory;  it  is  impossible  to  deny  a 
precedent  and  its  conclusion,  and  it  is  difl&cult  to  maintain  that 
what  has  actually  been  done  and  succeeded  in  the  past  may  not 
succeed  in  the  present  and  future.  It  is  for  the  opponent  to 
explain  away  the  precedent  and  show  its  inapplicability  to 
present  conditions.  The  burden  of  proof  is  shifted;  the  oppo- 
nent is  put  on  the  defensive,  and  unwillingness  to  resort  to 
arbitration  is  a confession  of  weakness  and  defeat. 

2.  Arbitration  in  the  Ancient  World^ 

I shall  therefore  set  forth  briefly  some  instances  of  arbitra- 
tion in  ancient  times,  the  Middle  Ages,  and  modern  history, 
and  show  by  concrete  example  that  not  only  the  agreement 


‘ M^rignhac:  Traits  Th^orique  et  Pratique  de  1’ Arbitrage  International, 
(1895),  translated  in  Moore’s  International  Arbitration,  Vol.  V,  pp.  4821, 
et  seq. 

^The  instances  of  arbitration  referred  to  in  this  section  are  taken  from 
M4rignhac,  as  translated  in  Moore,  Vol.  V,  pp.  4821,  et  seq. 


INTERNATIONAL  ARBITRATION 


195 


to  arbitrate  {clause  compromissoire)  but  that  arbitral  procedure 
have  been  familiar  in  all  time  to  the  students  of  classical  his- 
tory and  literature.  We  need  not  consider  isolated  cases  of 
arbitration  to  be  found  among  Asiatic  peoples,  not  only  because 
the  instances  are  in  themselves  unimportant  but  because  the 
institutions  of  the  East  were  based  upon  inequality  and  sub- 
jection. Herodotus  relates  two  instances  of  arbitration  in  his 
account  of  the  Persians,  but  they  are  not  of  a nature  to  serve  as 
precedents.  For  example,  in  a contest  arising  between  Artaba- 
zanes  and  Xerxes,  Darius  decided  in  favor  of  the  latter.  The 
judgment,  however,  was  not  definitive  and  the  people  being 
divided  in  their  opinion,  the  matter  was  submitted  to  the  de- 
cision of  the  uncle  of  the  two  pretenders,  who  decided  in  favor 
of  Xerxes.  It  will  be  noted  that  this  case,  if  it  be  considered  as 
an  arbitration,  was  confined  to  Persia,  and  that  in  the  next 
place,  it  was  merely  a family  dispute  settled  within  the  family. 
The  other  instance  related  by  Herodotus  more  nearly  meets 
the  requirements  of  arbitration,  for  he  relates  that  after  the 
defeat  of  the  lonians,  Artaphernes,  Satrap  of  Sardis,  sent  for 
the  deputies  of  the  cities  and  imposed  upon  them  an  obligation 
or  a treaty  binding  them  to  settle  future  conflict  by  law  rather 
than  by  force.  It  will  be  observed,  however,  that  the  rela- 
tion is  that  of  superior  to  inferior,  that  the  element  of  voli- 
tion is  wholly  absent  and  that  while  law  is  preferred  to  force 
the  element  of  consent  is  wholly  absent. 

The  various  examples  of  arbitration  to  be  found  in  Greek 
history,  while  differing  from  the  Persian  instances,  have  a point 
in  common,  namely,  that  the  arbitration  is  national,  or  racial, 
rather  than  international;  for  the  Greeks  neither  agreed  to 
arbitrate  nor  did  they  actually  arbitrate  their  differences  with 
foreign  countries.  The  foreigner  was  a barbarian  and  the  con- 
tempt with  which  the  foreigner  was  treated  made  foreigner  and 
barbarian  synonymous  terms.  The  Greek  was  a superior,  and 
the  foreigner  inferior,  merely  because  he  was  a foreigner.  Equal- 
ity was  entirely  lacking  and  the  element  of  confidence  so  essen- 
tial to  the  success  of  arbitration  was  wanting.  The  classical 
examples  of  arbitration  are  inter-Grecian  rather  than  inter- 


196 


THE  HAGUE  PEACE  CONFERENCES 


national ; for  the  Greeks  considered  themselves  as  members  of 
one  and  the  same  family,  differing,  it  may  be  in  importance 
and  in  worldly  station,  but  nevertheless  possessing  a common 
origin  and  a common  ideal.  They  could  therefore  submit  in- 
ternational disputes  to  other  members  of  the  family,  whereas 
they  would  have  scorned  to  permit  the  stranger  a voice  in  the 
settlement.  Members  of  one  and  the  same  family,  they  met 
as  equals,  and  to  preserve  this  equality,  it  was  essential  that 
each  city  should  maintain  its  independence,  and,  in  last  resort, 
the  sword  rather  than  law  was  deemed  essential.^  Great  polit- 
ical questions  were  therefore  excluded  and  disputes  submitted 
to  arbitration  chiefly  concerned  matters  of  religion,  commerce, 
boundaries,  the  possession  of  contested  territory,  especially 
of  the  numerous  islands  in  the  Grecian  seas.  The  following 
paragraph^  from  M^rignhac  instances  arbitration  under  these 
various  headings: 

In  the  time  of  Solon,  five  Spartans  were  chosen  to  decide 
between  the  Athenians  and  the  Megarians,  on  the  subject  of  the 
possession  of  the  Island  of  Salamis.  About  the  year  416  B.  C., 
Argive  judges  acted  as  arbitrators  as  to  certain  islands  of  which 
the  Cimolians  and  the  Melians  disputed  the  ownership.  The 
Etolians  rendered  an  arbitral  sentence  on  a question  of  boundary 
between  the  cities  of  Melite  and  Pera,  in  Thessaly.  Themis- 
tocles  determined  a dispute  beween  the  Corinthians  and  the 
Corcyraeans  about  Leucas,  deciding  that  the  peninsula  should  be 
held  in  common  upon  the  payment  of  twenty  talents  by  the 
Corinthians.  During  the  reign  of  Antigone  the  inhabitants  of 
Lebedos,  having  been  forced  to  leave  their  country,  settled  in 
Teos;  and  certain  questions  which  arose  between  the  old  and  the 

* On  pent  donner  des  examples  encore  plus  nets  de  ce  culte  pour  la  force. 
Dans  une  conf4rence,  un  M6garien  dlevait  la  voix:  “Mon  ami,  interrompt 
Lysandre,  tes  paroles  auraient  besoin  d’lme  ville!”  Autre  declaration 
de  principes  du  meme  Lysandre,  lors  d’une  discussion  de  frontiSres,  les 
Argiens  osent  soutenir  que  leurs  raisons  sont  les  meilleures:  “Celui  qui  est 
le  plus  fort  avec  cet  argument-1^,  r^fond  notre  homme  en  montrant  son 
dp^e  raisonne  mieux  que  tous  les  autres  sur  les  limites  des  territoires.’' — 
Revon’s  L’ Arbitrage  International:  son  passe  son  Present,  son  Avenir  (1892) 
p.  92. 

^ Merignhac:  Traite  Theorique  et  Pratique  de  I’Arbitrage  International, 
as  translated  by  Moore,  in  International  Arbitrations,  Vol.  V,  p.  4822. 


INTERNATIONAL  ARBITRATION 


197 


new  people  of  the  latter  city  were  adjusted  by  the  city  of  Mity- 
lene,  appointed  as  arbitrator  by  the  King  Antigone.^ 

Parties  may  bind  themselves  to  arbitrate  disputes  already 
in  existence  or  they  may  agree  to  submit  past  or  future 
controversies  to  arbitration.*  The  agreement  to  arbitrate  is 
technically  known  as  the  clause  compromissoire,  the  actual 
submission  of  the  case  is  embraced  in  the  compromis.  By 
the  agreement  to  arbitrate  the  parties  are  bound  to  submit 
the  case  when  it  arises.  The  compromis  gives  effect  to  the 
agreement,  defines  the  issues  to  be  arbitrated,  and  determines 
the  procedure.  The  instances  taken  from  Greek  history  are 
not  merely  important  as  showing  the  application  of  arbitra- 
tion to  a variety  of  subjects,  but  as  proof  that  the  Greeks 
understood  the  function  of  the  arbitral  clause  and  developed 
and  employed  the  system  of  procedure  with  which  we  are 
familiar  in  the  arbitrations  of  the  present  day. 

For  example,  in  a treaty  of  peace,  friendship  and  alliance 
for  fifty  years  concluded  418  B.C.  between  Argos  and  Lacede- 
monia,  it  was  provided  that  if  a 

dispute  arises  between  some  of  the  cities  of  the  Peloponnesus 
or  outside  of  it,  whether  it  be  a question  of  frontiers  or  some 
other  subject  an  arbitration  shall  be  had.  If,  among  the  allied 
cities,  there  are  some  who  cannot  get  along  together,  the  dispute 
shall  be  taken  before  a third  neutral  city,  chosen  for  the  purpose 
by  common  agreement. 

It  would  be  difihcult  to  find  a more  perfect,  that  is  to  say,  unlim- 


'Ici  nons  avons  une  affaire  coloniale  et  de  plus,  une  condemnation 
p6cuniare  comme  dans  I’arbitrage  de  Geneve  apr^s  I’affaire  de  I’Alabama. 
— Valmig^re,  De  L’ Arbitrage  International,  1898,  pp.  62-63. 

* Arbitration  in  all  its  forms  derives  its  origin  from  the  free  consent  of  the 
Powers  in  dispute,  and  the  only  difference  between  the  so-called  compul- 
sory arbitration  and  optional  arbitration  consists  in  the  circumstance 
that  the  consent  is  given  in  advance  in  the  former  case  while  in  the  latter 
it  is  given  after  the  dispute  arises.  In  either  case  it  is  only  a question  of 
a sovereign  act  on  the  part  of  the  Powers  at  variance,  which  by  no  means 
affects  the  independence  of  these  Powers  any  more  than  a contract  con- 
cluded affects  the  independence  of  the  contracting  party. — Sir  Edward 
Fry,  La  Deuxieme  Conference  Internationale  de  la  Paix,  1907,  Vol.  II, 
First  Commission,  Fifth  Session. 


198 


THE  HAGUE  PEACE  CONFERENCES 


ited  submission  to  arbitration.  There  is  no  reservation  of  any 
kind,  and  territorial  questions  which  have  been  so  fruitful  of 
international  disputes  and  have  been  the  fertile  causes  of 
war  in  the  new  world  as  well  as  in  the  old  are  to  be  submitted 
to  the  judgment  of  an  indifferent  arbitrator  for  settlement. 

Another  example  may  be  cited,  which  refers  not  merely  to 
future  disputes  but  to  controversies  already  existing.  The 
cities  of  Hyerapytna  and  Priansus  stipulated  that 

in  regard  to  the  injuries  already  done  on  either  side,  Enipan 
and  Neon,  the  cosmes  or  chief  magistrates  of  Crete,  should 
settle  the  disputes  arising  from  these  causes  before  a tribunal 
selected  from  each  city.  In  regard  to  any  future  injuries  they 
should  commit  they  should  employ  lawyers  prescribed  in  the 
order  of  the  public  edict.  ^ 

The  cosmes  were  also  to  indicate  the  city  from  which  both 
parties  should  choose  the  arbitrators. 

Passing  now  to  procedure.  It  appears,  to  quote  from  M6- 
rignhac,  that 

The  agreement  designated  the  arbitrator  and  the  subject  of 
the  litigation;  the  arbitrator  named  the  time  and  the  place  of 
the  decision,  and  the  parties  sent  commissioners  to  defend  their 
cause.  The  arbitrator,  who  was  bound  in  the  most  solemn 
manner  scrupulously  to  discharge  his  trust,  conducted  the 
business  with  religious  care,  heard  the  interested  parties,  and 
received  their  proofs.  The  sentence,  drawn  up  in  duplicate, 
was  usually  deposited  in  the  temples  or  other  public  places,  and 
both  sides  bound  themselves  by  oaths  to  execute  it.^ 

It  is  thus  seen  that  the  Greeks  were  familiar  with  arbitration, 
that  they  frequently  employed  it  in  concrete  cases  as  they 
arose  and  bound  themselves  to  resort  to  it  for  the  settlement 
of  future  controversies,  and  that  they  so  skillfully  adapted 
private  arbitration  to  public  affairs  that  the  procedure  devised 
by  them  is  acceptable  and  satisfactory  at  the  present  day. 
Arbitration  was  a distinctive  trait  of  the  Greek  race  and  was 
viewed  with  favor  both  by  historian  and  statesman.  Thucy- 
dides declared  that  “ it  is  impossible  to  attack  as  a transgressor 

' Moore’s  Internatioral  Arbitrations,  Vol.  V,  p.  4823. 

^ M^rignhac:  Traits  Th^orique  et  Pratique  de  1’ Arbitrage  International, 
as  translated  in  Moore’s  International  Arbitrations,  Vol.  V,  p.  4823. 


INTERNATIONAL  ARBITRATION 


199 


him  who  offers  to  lay  his  grievance  before  a tribunal  of  arbi- 
tration;” Aristides  praised  Pericles  because  to  avoid  war  he  is 
willing  to  accept  arbitrators,  and  Aeschines,  in  his  oration 
against  Ctesiphon,  commended  Philip  of  Macedon  because  he 
was  ready  to  refer  his  controversies  with  the  Athenians  to 
any  impartial  state. 

If  arbitration  was  practically  unknown  in  Asia,  and  if  it 
was  only  resorted  to  by  the  Greeks  for  the  settlement  of  con- 
troversies of  secondary  importance,  it  is  not  to  be  expected 
that  it  was  approved  in  theory  or  applied  in  practice  by  ancient 
Rome;  for  the  great  Republic  not  only  looked  upon  the  for- 
eigner as  an  inferior  but  dreamed  of  the  day  when  he  might 
be  subject  to  its  power.  Treaties  of  peace,  of  friendship  and 
of  alliance  were  indeed  made  with  foreign  peoples,  but  in  the 
hope  of  ultimate  subjection. 

Considered  as  inferiors,  Rome  neither  could  nor  would  sub- 
mit to  their  decision,  and  when  the  Rhodians  proposed  media- 
tion to  keep  Perseus  on  the  throne,  the  Senate  received  the 
proposition  with  sovereign  contempt,  and  Titus  Livius  says 
that  even  in  his  time  the  recollection  of  the  incident  excited  in- 
dignation. The  conception  of  independence  was  necessarily 
repugnant  to  a nation  aspiring  to  universal  domination,  and 
the  only  equality  recognized  was  the  equality  of  the  inferiors 
among  themselves.  In  such  conditions  arbitration  was  im- 
possible, and  the  only  remedy  open  to  the  inferior  was  petition 
for  the  redress  of  grievances.  To  quote  again  rather  than  to 
paraphrase  Merignhac: 


The  Senate  at  first,  the  Emperor  finally,  as  absolute  arbi- 
trators of  all  claims,  gave  audience  to  all  deputies  of  peoples  who 
had  petitions  to  present,  and  who  came  as  suppliants  to  ask  for 
justice,  for  example,  against  the  exactions  of  the  governors  of 
provinces.  They  were  also  the  natural  judges  of  conflicts  which 
might  arise  between  the  different  peoples  subject  to  Roman 
authority.  And  the  custom  of  taking  the  Senate  as  arbitrator 
was  even  introduced  among  independent  nations,  who  were 
fascinated  by  the  splendor  of  the  Roman  name.  But  it  does  not 
seem  that  the  Romans  played  the  r61e  of  arbitrator  in  very  good 
faith,  and  their  behavior  might  serve  as  a precedent  for  La 


200  THE  HAGUE  PEACE  CONFERENCES 

Fontaine’s  fable,  The  Oyster  and  the  Advocates.  In  one  case 
the  Romans  were  arbitrators  of  some  question  of  boundary 
between  the  Aricans  and  the  people  of  Ardea,  and  they  decided 
the  point  at  issue  by  seizing  the  disputed  territory  themselves. 
There  was  a similar  case  about  180  B.  C.  between  Nola  and 
Naples.  Cicero  justly  condemns  this  course,  which  he  styles 
miserable  trickery.^ 

As  an  institute  of  public  law,  arbitration  was  scorned  by  the 
Romans  as  inconsistent  with  an  ambition  in  which  justice 
played  no  part.  It  should  be  said,  however,  that  in  private 
law  arbitration  was  highly  regarded,  developed  and  refined 
so  that  the  rules  and  regulations  framed  by  Roman  jurists  and 
applied  in  private  litigation  form  a safe  and  sure  guide  for  the 
settlement  of  controversies  between  independent  states  of 
the  present  day. 

3.  Arbitration  from  the  Middle  Ages  to  Jay’s  Treaty 

(1794) 

Although  examples  of  abitration  are  not  wanting,  indeed 
they  are  frequent  in  the  middle  ages,  conditions  essential  to 
systematic  arbitration  did  not  exist.  The  spiritual  headship 
of  the  Church  undoubtedly  made  for  peace  and  the  peaceful 
settlement  of  controversies,  for  the  voice  that  bade  Peter  put 
up  his  sword  was  the  voice  of  peace.  But  the  supremacy  of 
the  Church  was  rudely  shaken  by  the  Reformation.  Admit- 
ting, however,  the  spiritual  supremacy  of  the  Church,  its 
claim  to  temporal  sovereignty  brought  the  Church  face  to  face 
with  the  Empire  which  claimed  and  asserted  temporal  over- 
lordship. The  unseemly  contest  of  centuries  between  Church 
and  Empire  in  which  the  sword  was  freely  drawn  and  used 
was  not  an  edifying  spectacle,  and  the  example  of  Pope  and 
Emperor  influenced  a world  not  over-inclined  to  peace  and  the 
ways  of  peace.  The  independence  and  consequent  equality 
of  states  found  no  place  in  the  theory  or  practice  of  the  Middle 


* Moore’s  International  Arbitrations,  Vol.  V,  pp.  4824-4825. 


INTERNATIONAL  ARBITRATION 


201 


Ages,  and  foreign  intercourse  was  based  upon  arrogance  rather 
than  upon  the  desire  of  justice.  The  supremacy  of  the  Church 
or  Empire  was  equally  inconsistent  with  independence  and 
equality,  and  arbitration  based  upon  independence  and  equal- 
ity and  a desire  for  justice  could  not  flourish  in  an  atmosphere 
of  lawless  and  unrecognized  superiority. 

The  r61e  of  the  Church  in  arbitration  is  more  marked  in  the 
period  of  its  decline  than  in  the  height  of  its  power  and  influ- 
ence, and  the  Empire,  hostile  alike  to  the  independence  and 
equality  of  the  States,  was  rarely  chosen  as  arbiter  and  could 
not  impose  arbitration  upon  those  who  disputed  its  title  to 
supremacy. 

The  confusion,  not  to  say  anarchy,  of  internal  conditions 
resulted  in  confusion  and  disorder  which  are  inconsistent  with 
the  idea,  much  less  the  realization,  of  domestic  peace  based 
upon  a respect  for  law  and  the  order  that  springs  from  its 
observance.  As  aptly  said  by  Professor  Moore, 

a slight  familiarity  with  history  suffices  to  show  that  the  pres- 
ervation of  international  peace  is  to  a great  extent  dependent 
upon  the  preservation  of  domestic  peace.  Civil  disturbances 
not  only  produce  exceptional  measures,  which  in  turn  give 
rise  to  complaints  and  claims,  but  they  render  uncertain  the 
performance  of  international  engagements  and  sometimes  the 
readjustment  of  international^relations.* 

It  is  no  slight  tribute  to  the  reasonableness  and  efficacy  of 
arbitration  that  it  maintained  itself  in  the  midst  of  a world  of 
I conflict  and  that  it  continued  fitfully  and  hesitatingly  the  tra- 
dition of  the  ancient  world.  It  is  rather  a source  of  comfort 
and  consolation  to  its  partisans  that  it  did  not  wholly  pass 
away  from  the  minds  of  men,  and  if  its  application  was  rare  and 
its  instances  unimportant,  the  precedents  are  valuable  and 
I full  of  hope  and  encouragement  as  evidence  of  the  strength 
and  vigor  of  the  principle. 

Therefore  as  precedents,  I shall  enumerate  briefly  and  in 

* Moore’s  Application  of  the  Principles  of  International  Arbitration  on 
the  American  Continents,  in  the  Annals  of  the  American  Academy  of 
Political  Social  Sciences,  Vol.  22,  pp.  35,  42. 


202 


THE  HAGUE  PEACE  CONFERENCES 


summary  form  various  instances  of  arbitration  of  the  Middle 
Ages.* 

There  are  a few  instances  of  arbitration  among  the  barba- 
rian tribes  before  the  overthrow  of  the  Roman  Empire.  For 
example,  the  Gepidse  proposed  arbitration  to  the  Lombards 
and  declared  it  unjust  to  use  violence  toward  those  who  de- 
mand a judge.  Theodoric,  king  of  the  Ostro-Goths,  sent 
ambassadors  to  the  kings  of  the  Herulians  and  Varnes  asking 
them  to  join  in  inviting  Clovis,  king  of  the  Franks,  to  cease 
his  wars  against  the  Visigoths  and  to  accept  the  arbitration  of 
the  united  kings — an  offer  accepted  by  Clovis. 

In  the  period  following  the  fall  of  Rome,  instances  of  arbi- 
tration exist  in  which  popes  and  bishops  of  the  Church  func- 
tioned as  arbitrators.  Emperors,  kings,  cities,  commissions 
and  eminent  jurists  were  chosen  as  arbitrators  and  rendered 
acceptable  awards.  Of  each  of  these  in  turn. 

Innocent  III  declared  the  Pope  the  sovereign  mediator  on 
earth,  a claim  inconsistent  with  arbitration,  for  the  Pope  in 
such  cases  would  act  as  sovereign  judge,  not  as  arbitrator,  and 
an  arbitration,  if  it  exist  at  all,  would  be  forced  not  voluntary. 

Alexander  III,  Honorius  III,  John  XXII,  and  Gregory 
XI  arbitrated  great  European  quarrels.  Alexander  VI  settled 
a dispute  between  the  Spaniards  and  Portuguese  as  to  the  new 
world  by  drawing  an  imaginary  line  from  pole  to  pole. 
It  is  doubtful  if  this  latter  can  be  considered  a case  of  arbitra- 
tion. After  the  sixteenth  century  the  kings  objected  to  the 
popes’  pretensions,  and  Clement  VIII,  made  arbitrator  of 
disputes  under  the  treaty  of  Vervins  (1598),  resigned  his  mis- 
sion owing  to  friction  with  Charles  Emanuel,  Duke  of  Savoy. 
In  the  seventeenth  century  Gregory  XV  arbitrated  the  ques- 
tion of  the  forts  of  the  “Valteline.  ” In  the  eighteenth  cen- 
tui'y  Clement  XI  served  as  umpire  between  Louis  XIV  and 
Leopold  I who  were  arbitrators  under  Article  8 of  the  treaty 
of  Ryswick.^ 

‘ For  fuller  statement  of  the  instances  and  specific  references  to  sources, 
see  Moore’s  International  Arbitrations,  Vol.  V,  pp.  4825-4833. 

’Du  Mont,  corps  universel  diplomatique,  VIII,  1-98;  Schmaus,  corpus 


INTERNATIONAL  ARBITRATION 


203 


Instances  in  which  bishops  were  chosen  and  served  as  arbi- 
trators are  the  following : 

By  the  treaty  of  Nonancourt  (1177)  three  bishops  arbitrated 
between  Louis  le  Jeune  and  Heniy  II  of  England  concerning 
some  fiefs.  In  1276  two  bishops  and  a warrior  were  made 
judges  between  the  kings  of  Hungary  and  Bohemia,  and  in 
1475  Louis  XI  and  Edward  of  England  referred  disputes  to 
the  Archbishop  of  Paris  and  the  Count  Dunois  (for  Louis) 
and  the  Archbishop  of  Canterbury  and  the  Duke  of  Clarence 
(for  Edward) . 

The  Emperors  of  the  Holy  Roman  Empire  aspired  to  be 
arbitrators,  but  as  their  claim  of  superiority  was  as  unaccept- 
able as  the  claim  of  the  Pope  to  temporal  supremacy,  the  in- 
stances are  rare  in  which  they  were  chosen  and  acted  as  arbi- 
trators. In  these  few  instances  everything  was  excluded 
that  would  imply  supremacy  over  other  monarchs.  In  1378 
the  Emperor  Charles  IV  went  to  Paris  to  decide  a controversy 
between  France  and  England  under  these  conditions. 

It  is  stated  that  feudalism  with  its  system  of  vassalage  pre- 
disposed the  vassals  to  accept  their  lords  as  judges,  but  the 
relation  of  superior  to  inferior  was  fatal  to  arbitration  in  the 
broad  and  equitable  sense  of  the  word.  The  over-lord  ap- 
peared rather  as  judge  than  arbitrator  and  imposed  his  sen- 
tence upon  the  inferior.  The  same  objection  did  not  apply 
to  monarchs  who  recognized  each  other’s  independence  and 
equality  and,  therefore,  kings  as  such  were  frequently  chosen, 
especially  the  kings  of  France.  St.  Louis  was  judge  between 
Henry  H of  England  and  his  barons  in  1263,  and  between 
the  Counts  of  Luxemburg  and  Bar  in  1268.  Philip  VI,  Charles 
V,  Charles  VII,  Louis  IX  and  Louis  XI  served  as  arbitrators. 

juris  publici  academici,  No.  101;  Kliiberet  Ott,  Droit  des  gens  moderne  de 
i’Europe,  82,  456. 

The  treaty  of  Ryswick  referred  to  here  was  the  treaty  between  the 
Empire  and  France,  October  30, 1697.  Article  VIII  submitted  the  claims  of 
the  Duchess  of  Orleans,  as  to  certain  places  restored  to  the  Elector  Palatine, 
to  their  Imperial  and  Most  Christian  Majesties,  and,  in  case  they  could  not 
agree,  to  the  final  decision  of  the  Pope. — Moore,  Int.  Arb.  Vol.  V,  pp. 
4826-4827. 


204 


THE  HAGUE  PEACE  CONFERENCES 


Other  monarchs  are  known  to  have  acted  as  arbitrators;  for 
example,  Henry  II  and  William  III  of  England. 

In  the  classic  examples  of  arbitration  Greek  cities  were  fre- 
quently chosen  as  arbiters,  and  the  tradition  was*  continued 
in  the  Middle  Ages;  for  example,  the  Republic  of  Hamburg  was 
chosen,  by  the  treaty  of  Westminster  (Article  24),  to  act  as  arbi- 
trator between  Great  Britain  and  France  and  to  decide  the 
question  of  damages  on  both  sides  from  the  year  1640.^  The 
Grand  Council  of  Malines  in  1665  passed  upon  the  obligation 
of  a debt,  called  the  debt  of  Hofyser  between  Frederick  William, 
of  Brandenburg,  and  the  States-General  of  the  United  Prov- 
inces, and  the  States-General  arbitrated  controversies  relating 
to  the  fortified  places  and  auxiliary  points  between  France 
and  Spain  after  the  peace  of  Nimeguen.  The  parliaments  of 
France,  "renowned  for  their  wisdom  and  equity”  were  chosen 
to  settle  disputes  between  foreign  sovereigns. 

Commissions  of  arbitration  were  known  and  employed;  for 
example,  it  seems  that  in  1299  certain  commissioners  were 
sitting  in  Paris 

to  redress  damages  done  to  merchants  of  various  nations  by  a 
French  admiral  within  the  English  seas.^ 

There  are  not  a few  instances  of  arbitration  by  eminent 
jurists.  The  doctors  of  the  Italian  universities  of  Perugia  and 
Padua,  and  particularly  of  the  celebrated  University  of  Bo- 
logna, were  often  employed  as  diplomatists  or  arbitrators  to 
settle  conflicts  between  the  different  States  of  Italy.  The 
right  of  the  house  of  Farnese  to  the  throne  of  Portugal  was 
decided  by  them.  Alciat,  one  of  the  most  famous,  decided 
the  rights  of  sovereignty  and  independence  of  the  Principalities 
of  Italy  and  Germany,  and  in  France,  Jean  B6gat,  councilor 
of  the  parliament  of  Dijon,  was  an  arbitrator  between  Spain 
and  Switzerland  in  relation  to  Franche  Comte  (1570). 

* De  Flassan,  III,  200.  (Article  XXV  also  provided  for  the  submission 
in  the  same  manner  of  a question  as  to  the  possession  of  certain  forts  in 
America. — Moore,  Int.  Arb.  Vol.  V,  p.  4828.) 

“ Hall,  Int.  Law,  4th  ed.,  147;  Mooie,  Int.  Arb.,  Vol.  V,  p.  4831. 


INTERNATIONAL  ARBITRATION 


205 


In  the  seventeenth  century  several  treaties  were  concluded 
prescribing  recourse  in  clearly  defined  cases  to  arbitration. 
For  example,  in  the  treaty  of  1606  between  James  I of  Eng- 
land and  Henry  IV  of  France  international  courts  of  commerce 
were  created,  to  consist  of  two  French  and  two  English  mer- 
chants to  be  chosen  in  Rouen  and  in  London,  to  act  as  local 
courts  on  complaints  of  citizens  of  the  foreign  country.  “ Like 
establishments”  were  to  be  made  in  the  cities  of  Bordeaux, 
and  Caen,  as  also  in  the  cities  and  towns  of  the  Kingdoms  of 
Great  Britain  and  Ireland, 

to  take  care  of  the  weights  and  measures  in  every  city  of  the 
one  and  the  other  Kingdom,  so  that  there  may  be  no  fraud  or 
abuse  on  either  side. 

They  were  also  charged  to  prevent  fraud  and  abuse  and  to 
inspect  merchandise. ‘ In  1648  the  treaty  of  Munster  pro- 
vided that  the  controversy  concerning  Lorrain  should  be 
referred  to  arbitrators,  and  in  1659  the  Peace  of  the  Pyrenees 
(articles  108  to  110)  provided  for  the  appointment  of  com- 
missioners with  power  to  agree 

“ concerning  all  things  to  be  yet  executed,  either  touching  the 
interests  of  the  said  lords  and  kings  or  the  interests  of  the  com- 
monalties and  private  persons,  their  subjects,  who  shall  have 
anything  to  demand  or  complaint  to  make  on  either  side,” 
and  also  “ to  regulate  the  limits  as  well  between  the  dominions 
and  countries  that  of  old  have  belonged  to  said  lords  and  kings, 
about  which  there  have  been  some  debates,  as  between  the 
dominions  and  lordships  that  are  to  remain  to  each  of  them,  by 
the  present  treaty,  in  the  Low  Countries;” 

and  in  case  they  should  be  unable  to  agree,  it  was  stipulated 
that  “arbitrators”  should  be  appointed  to  take  cognizance 
of  “ whatsoever  shall  remain  undecided  between  the  said  com- 
missioners,” and  that  the  “judgments”  rendered  by  the  arbi- 
trators should  “be  executed  on  both  sides  without  any  delay 
or  diflBculty.”  Articles  122  and  123  of  the  same  treaty  are 
especially  interesting,  inasmuch  as  they  provide  that  the 

* See,  for  a somewhat  similar  provision  for  a commercial  tribtmal.  Article 
XXI  of  the  treaty  between  Spain  and  the  Low  Countries,  signed  at  Mun- 
ster, January  30,  1648.— Moore,  Int.  Arb.,  Vol.  V,  p.  4832. 


206 


THE  HAGUE  PEACE  CONFERENCES 


high  contracting  parties  (Spain  and  France)  should  prose- 
cute their  claims  against  either  of  the  party’s  allies  ''  by  right, 
before  competent  judges,  and  not  by  force. 

In  1656  Cromwell  and  the  King  of  Sweden  decided  to  sub- 
mit claims  under  the  treaty  of  Upsal  to  arbitrators.*  In  1672 
Charles  II,  in  declaring  war  against  the  United  Provinces, 
alleged  as  a cause  the  refusal  to  send  commissioners  for  the 
regulation  of  trade  in  the  East  Indies.®  In  1679,  by  Article  8 
of  the  treaty  of  Ryswick  between  France  and  Great  Britain, 
provision  was  made  for  the  appointment  of  commissioners 
“to  examine  and  determine  the  rights  and  pretensions”  of 
the  contracting  parties  “to  the  places  situated  in  Hudson’s 
Bay.”^  Article  10  of  the  treaty  of  Ryswick  between  France 
and  Spain  (1697)  provided  for  the  submission  to  arbitration 
of  the  question  of  the  possession  of  eighty-two  towns.®  Arti- 
cles 10  and  11  of  the  treaty  of  Utrecht  between  France  and 
Great  Britain  (1713)  provided  for  the  appointment  of  com- 
missioners to  fix  the  boundaries  between  Hudson’s  Bay  and 
the  places  appertaining  to  the  French  (Article  10),  and  to  adjust 
claims  made  by  the  subjects  of  each  country  against  the  other 
growing  out  of  various  incursions,  depredations  and  spolia- 
tions (Article  11).®  And,  finally,  the  treaty  of  Passarowitz  of 
1718  between  the  Emperor  of  Germany  and  the  Sultan  made 
provision  for  reference  to  commissions  of  all  controversies  whiph 
might  arise  “concerning  any  articles  of  this  armistice,  or  any 
other  thing.”  (Article  9).  Article  5 of  the  same  treaty  provided 
that  commissioners  were  to  be  chosen  to  determine  the  limits 
of  “Dalmatia,  Erzegovina,  Albania,  and  the  Archipelago”  and 
Article  16  specified  in  broad  and  general  terms  that 

whenever  quarrels  and  animosities  arise  on  the  frontiers  by 
reason  of  murders  or  other  cause,  they  shall  be  decided  accord- 
ing to  equity  by  the  arbitration  of  the  governors  of  those 
borders.* 

' Moore,  Int.  Art.,  Vol.  V,  pp.  4832-4833. 

* Ibid.,  p.  4833. 

’ Ibid. 

* Ibid.  5 Ibid. 


' Ibid. 


* Ibid. 


INTERNATIONAL  ARBITRATION 


207 


In  speaking  of  the  rules  prescribed  for  the  guidance  of  arbi- 
trators, M.  M^rignhac  says: 

If  we  should  try  to  find  judicial  rules  that  governed  arbitra- 
tion in  the  different  periods  at  which  we  have  glanced,  we  should 
discover  that  they  did  not  present  great  stability,  and  that  they 
varied  with  different  litigations.  The  choice  of  arbitrators  fell 
generally  on  monarchs,  and  exceptionally  on  arbitral  commis- 
sions or  private  individuals.  A period  was  sometimes  fixed 
either  for  the  meeting  of  the  arbitrators  (the  treaty  of  Vervins  of 
1598,  Article  17,  provided  that  it  should  take  place  in  six  months) 
or  for  the  rendering  of  the  decision  (the  Treaty  of  Westminster 
of  1655  allowed  six  months  and  a half).  Sometimes  a penal 
clause  was  inserted,  by  which  a penalty  was  imposed  on  the 
party  who  refused  to  submit  to  the  decision;  for  example,  the 
treaty  of  the  9th  of  August  1475,  between  Louis  XI  and  Edward 
IV,  prescribed  a sum  of  three  million  francs. ‘ 

The  procedure  likewise  varied  with  the  case,  but  usually 
had  a judicial  aspect ; for  example,  in  the  dispute  between  the 
Dukes  of  Savoy  and  Mantua  and  the  Marquis  of  Saluces, 
Charles  V designated  certain  persons  to  examine  the  matter 
in  dispute,  to  take  testimony,  and  upon  their  advice  and  in 
accordance  with  the  evidence  found,  rendered  his  judgment. 
Lawyers  appeared  before  the  persons  designated  by  Charles 
V to  argue  the  case  of  their  clients.  The  clause  compromis- 
soire,  that  is,  the  agreement  to  arbitrate  future  difficulties, 
does  not  appear  to  have  been  frequent  in  the  Middle  Ages,  or, 
indeed,  in  later  times.  It  appears,  however,  to  have  been 
employed  by  the  commercial  cities  of  Italy  and  Switzerland.^ 
Two  instances  may  be  cited : In  a treaty  of  alliance  concluded 
in  1235  between  Genoa  and  Venice  there  is  an  arbitration 
clause  which  reads  as  follows: 

If  a difficulty  should  arise  between  the  aforesaid  cities,  which 
cannot  easily  be  settled  by  themselves,  it  shall  be  decided  by  the 
arbitration  of  the  Sovereign  Pontiff;  and  if  one  of  the  parties 

‘ Quoted  from  Moore’s  Int.  Art,.  Vol.  V,  p.  4829. 

’ Vattel,  Le  Droit  des  gens,  L.  II,  C.  XXVIII,  sec.  329,  t.  II,  p.  58. 
Conf.  Histoire  de  la  Confederation  helv4tique,  de  A.  L.  by  Watteville,  L.  IV ; 
Moore,  Int.  Arb.,  Vol.  V,  p.  4830. 


208 


THE  HAGUE  PEACE  CONFERENCES 


violate  the  treaty,  we  agree  that  His  Holiness  shall  excommuni- 
cate the  offending  cityd 

In  the  “Perpetual  Peace”  of  1516  between  Francis  I and 
the  Swiss  Cantons,  the  following  clause  is  found : 

Difficulties  and  disputes  that  may  arise  between  the  subjects 
of  the  King  and  the  inhabitants  of  the  Swiss  Cantons,  shall  be 
settled  by  the  judgment  of  four  men  of  standing,  two  of  whom 
shall  be  named  by  each  party;  which  four  arbitrators  shall  hear, 
in  an  appointed  place,  the  parties  or  their  attorneys;  and,  if  they 
shall  be  divided  in  opinion,  there  shall  be  chosen  from  the  neigh- 
boring countries  an  unbiased  man  of  ability,  who  shall  join  with 
the  arbitrators  in  determining  the  question.  If  the  matter  in 
dispute  is  between  a subject  of  the  Cantons  and  Leagues  and  the 
King  of  France,  the  Cantons  will  examine  the  demand,  and,  if  it 
is  well  founded,  they  will  present  it  to  the  Bang;  but,  if  the  King 
is  not  satisfied  with  it,  they  may  call  the  King  before  the  arbitra- 
tors, who  shall  be  selected  from  among  impartial  judges  of  the 
countries  of  Coire  or  of  Valois,  and  whatever  shall  be  decided  by 
the  aforesaid  judges,  by  a judicial  or  amicable  sentence,  shall 
be  inviolably  observed  without  any  revocation.^ 

It  is  thus  seen  that  arbitration  was  frequently  resorted  to  in 
the  Middle  Ages,  but,  although  the  instances  are  numerous, 
considered  by  themselves,  they  are  both  trifling  in  importance 
and  number  when  compared  to  the  multitude  of  controver- 
sies settled  by  the  sword.  If  examined  carefully  they  cannot 
be  said  to  be  arbitration  in  the  strict  sense  of  the  word,  be- 
cause the  Church  in  the  height  of  its  power  imposed  its  will 
upon  parties  in  controversy.  The  Papacy  was  in  reality  more 
of  a mediator  than  an  arbiter.  The  distinction  between  these 
forms  of  peaceable  settlement  does  not  seem  to  have  been 
observed,  if  it  was  understood.  Indeed,  mediation  was  as 
consistent  with  a claim  of  supremacy  as  arbitration  was  incon- 
sistent and  irreconcilable  with  the  claim  and  exercise  of  un- 
limited supremacy. 

In  the  same  way  the  emperor  was  more  of  a mediator  than 
an  arbiter,  and  to  exclude  his  intervention  as  mediation  it  was 
necessary  to  limit  his  powers  in  the  individual  case  in  such 

' Moore’s  Int.  Arb.  Vol.  V,  p.  4830. 

2 Ibid. 


INTERNATIONAL  ARBITRATION 


209 


a way  as  to  exclude  the  claim  and  exercise  of  supremacy  on 
the  one  hand,  and  the  position  of  mediator  on  the  other. 
The  conception  of  sovereignty,  regardless  of  clerical  and  im- 
perial pretension,  the  recognition  of  the  equality  of  states, 
irrespective  of  religious  preferences  or  forms  of  government, 
consequent  upon  the  Reformation  and  the  treaty  of  West- 
phalia, laid  the  foundations  indispensable  to  arbitration  in  the 
proper  sense  of  the  word.  M.  Merignhac  is  therefore  justified 
by  theory  as  well  as  fact  when  he  states  and  illustrates  by 
example  the  difficulty  of  distinguishing  between  arbitration 
and  mediation  before  the  seventeenth  century.  The  impor- 
tance of  the  subject  and  the  necessity  of  the  distinction  justify 
a further  quotation  from  this  distinguished  authority. 

In  1334  Philip  of  Valois  declared  himself  elected  judge,  nego- 
tiator, and  arbitrator  between  the  King  of  Bohemia,  the  Princes 
of  Germany,  and  the  Duke  of  Brabant.  Sometimes  the  media- 
tion was  of  an  obligatory  nature,  owing  to  the  fear  inspired  by 
the  mediator’s  being  able  to  impress  his  views  by  force  of  arms. 
Thus  Henri  IV  acted  as  mediator  between  the  Republic  of  Venice 
and  Pope  Paul  V.  The  Pope  counted  on  Spain’s  sustaining  him; 
but  Henri  IV,  in  order  to  oppose  the  forces  of  that  country, 
made  propositions  to  the  Swiss  to  raise  ten  thousand  men;  so 
that  the  Pope  was  finally  obliged  to  submit  to  the  will  of  the 
French  King. 

But  from  the  year  1595  we  find  the  distinction  between  media- 
tion and  arbitration  clearly  defined  by  the  French  ministers, 
who  interposed  between  the  Protestants  and  Catholics,  who 
were  on  the  point  of  coming  to  blows  on  the  subject  of  the 
expulsion  of  Catholic  magistrates  from  Aix-la-Chapelle  and 
of  their  replacement  by  a Protestant  magistracy.  “ We  declare 
to  you,”  say  the  ministers  on  the  part  of  His  Majesty  (the  King 
of  France),  “that  he  has  no  design  of  prejudicing  the  authority 
and  the  rights  of  the  Emperor,  of  the  Empire,  of  any  prince, 
or  of  any  person;  and  in  order  that  the  pending  dispute  may  be 
discussed  in  an  easy  and  orderly  way,  we  invite  you  respectively 
to  depute  peaceable  and  dispassionate  men,  who  can  confer  with 
us  in  all  confidence  and  safety,  and  we  will  listen  patiently  to 
whatever  they  may  say  and  propose,  not  as  judges  or  arbitrators, 
but  as  mediators  and  amicable  compositors”  ‘ 

In  view  of  the  classical  precedents  of  arbitration  and  the 

‘ Quoted  from  Moore’s  Int.  Arb.,  Vol.  V,  p.  4831. 


210 


THE  HAGUE  PEACE  CONFERENCES 


various  instances  of  its  application  in  the  Middle  Ages,  and 
its  conventional  recognition  in  treaties  between  powers  of 
influence  and  standing,  it  is  difficult  to  understand  why  arbi- 
tration as  such  seems  completely  to  have  disappeared  from  the 
public  law  of  the  eighteenth  century.  In  his  International 
Law,  published  in  1819,  the  distinguished  publicist,  Klilber, 
thoroughly  familiar  with  the  theory  and  practice  of  inter- 
national law,  called  attention  to  the  fact  that  arbitration  had 
been  strangely  neglected  and  asked  the  pertinent  question: 

Why  do  we  never  go  back  to  arbitrators?  At  most  we 
accept  the  mediation  of  a third  power,  but  this  is  usually  ineffec- 
tual. There  is  no  longer  anything  but  war,  so  to  speak,  which 
can  insure  the  inviolability  of  the  laws.^ 

Rousseau  had  already  answered  the  query. 

Could  they  submit  themselves  to  a tribunal  of  men  who 
boasted  that  their  power  was  founded  exclusively  on  the  sword, 
and  who  bowed  down  to  God  only  because  He  is  in  Heaven?  ^ 

Arbitration  as  a judicial  settlement  of  controversies  is 
opposed  to  force  in  every  form,  and  can  only  bring  forth  the 
fruits  of  peace  when  the  disputants  are  animated  by  a desire 
to  do  justice  and  to  conform  themselves  to  its  dictates. 

4.  Instances  of  Arbitration  from  Jay’s  Treaty  (1794) 

Arbitration  in  the  sense  of  the  present  day  dates  from  Jay’s 
Treaty  of  1794  in  which  Great  Britain  and  the  United  States, 
bound  themselves  to  arbitrate  contested  boundary  claims 
(Article  5);  claims  preferred  by  British  creditors  (Article  6); 
and,  more  especially,  the  claims  of  American  and  British 
creditors  based  upon  “ irregular  or  illegal  captures  or  condem- 
nations of  their  vessels  and  other  property”  (Article  7). 

Criticised  at  the  time  as  a surrender  to  Great  Britain, 
its  commercial  provisions  denounced  as  wholly  inadequate, 

‘ Droit  des  gens,  §318,  note  a. 

^Moore,  Int.  Arb.,  Vol.  V,  p.  4829. 


INTEKNATIONAL  ARBITRATION 


211 


carried  without  a vote  to  spare  in  the  Senate,  and  in  the 
matter  of  appropriation  by  the  narrow  majority  of  three  in 
the  house  of  representatives,  due  to  the  timely  and  masterly 
intervention  of  Fisher  Ames,  this  treaty,  which  ruined  the 
political  career  of  Jay  and  deprived  him  of  the  presidency  to 
which  he  seemed  destined,  is  not  only  the  vindication  of  Wash- 
ington’s selection  of  Jay,  and  an  adequate  testimonial  to  the 
ability  and  legal  attainments  of  its  negotiator,  but  by  common 
consent,  the  starting  point  of  international  arbitration.  As 
a statesman,  were  other  evidences  lacking.  Jay  might  have 
been  content  to  rest  his  claim  to  remembrance  upon  the  treaty ; 
of  his  standing  as  a jurist,  notwithstanding  his  elevated  posi- 
tion as  first  chief  justice  of  the  United  States,  the  treaty  is 
sufficient  evidence.  On  a higher  and  broader  plane  as  a friend 
of  peace  and  a lover  of  his  kind,  the  treaty  is  and  always  will 
be  an  imperishable  monument.  It  is  given  to  few  men  to  sign 
a treaty  which  recognisses  the  independence  of  their  country 
(Treaty  of  September  3, 1783) ; to  negotiate  a treaty  which 
prevented  war  and  secured  the  blessings  of  peace  (Treaty  of 
1794);  and  to  devise  an  instrument  at  once  simple,  reason- 
able and  fitted  both  in  theory  and  practice  to  diminish  war 
by  the  peaceful  and  judicial  settlement  of  international  con- 
flicts (Treaty  of  1794,  Articles  5,  6,  7).  It  may  be  proper 
to  note  in  passing  that  the  son  was  worthy  of  the  father,  for 
t the  proposal  to  insert  in  future  treaties  a general  clause  to 
arbitrate  difficulties  arising  under  such  treaties,  to  which 
I practical  effect  is  now  given,  is  found  in  William  Jay’s  little 
tract  on  War  and  Peace,  published  in  Great  Britain  and  the 
United  States  in  1842. 

The  articles  in  Jay’s  Treaty  to  which  reference  has  been 
made  provide  for  the  arbitration  of  outstanding  difficulties 
by  means  of  mixed  commissions.  The  loosely  drawn  charters 
of  the  colonies,  granting  as  they  did  vast  tracts  of  territory, 
gave  rise  to  numerous  and  bitter  controversies  between  the 
colonies,  some  of  which  were  settled  by  the  Continental  Con- 
gress, others  by  means  of  the  commission  of  arbitration  devised 
by  the  ninth  article  of  the  Confederation,  and  still  others 


212 


THE  HAGUE  PEACE  CONFERENCES 


decided  by  the  Supreme  Court  of  the  United  States  in  suits 
to  which  states  of  the  Union  were  parties.  Jay,  himself,  was 
commissioner  of  the  state  of  New  York  in  its  controversy 
with  Vermont,  and  was  therefore  familiar  in  practice  as 
well  as  theory  with  disputes  of  this  nature.  As  chief  justice 
of  the  United  States  he  would  naturally  prefer  a judicial  to  a 
diplomatic  settlement  of  such  controversies.  The  British 
Government  was  equally  familiar  with  the  settlement  of  dis- 
puted claims  by  mixed  commissions  and  in  several  treaties 
negotiated  by  Cromwell  as  Lord  Protector,  ample  provision 
was  made  for  the  institution  of  such  commissions. 

The  first  of  Cromwell’s  series  of  treaties  containing  an  agree- 
ment to  arbitrate  outstanding  difficulties  by  means  of  mixed 
commissions,  is  the  so-called  Treaty  of  Westminster  (April 
5,  1654)  ‘ between  England  and  the  Netherlands.  Article  28 
of  this  remarkable  treaty  provides  that  the  losses  suffered 
by  the  seizure  and  detention  of  English  effects  in  Denmark 
since  May  18, 1652, 

“ shall  be  made  good  according  to  an  appraisement  to  be  made 
by  Edward  Winslow,  James  Russell,  John  Bex  and  William 
Van  der  Cruysen,  Arbitrators  indifferently  chosen,  as  well  on  the 
part  of  his  Highness  as  of  the  said  States-General  (the  Form 
of  Instrument  of  Arbitration  is  already  agreed  on)  to  examine 
and  determine  the  Demands  of  the  Merchants,  Masters  and 
Owners,  to  whom  the  said  Ships,  Effects,  and  Losses  appertain.” 
Article  XXX  provides  for  the  appointment  of  four  commis- 
sioners “ to  examine  and  distinguish  all  those  losses,  and  injurys, 
in  the  Year  1611,  and  after  to  the  18th  of  May  1652  as  well  in 
the  East  Indies,  as  in  Greenland,  Muscovy,  Brazil,  or  wherever 
else,  either  party  complains  of  having  suffered  them  from  the 
other.” 

In  case  of  failure  to  adjust  the  differences  within  the  period  of 
three  months,  the  article  provided  for  their  submission  “ to  the 
Judgment  and  Arbitration  of  the  Protestant  Swiss  Cantons,* 

' A General  Collection  of  Treatys  of  Peace  and  Commerce  (1732),  Vol. 
Ill,  pp.  76-79;  Jenkinson’s  Collection  of  all  the  Treaties  of  Peace,  Alliance 
and  Commerce,  between  Great  Britain  and  other  Powers  (1758),  Vol.,  pp. 
44,  et  seq. 

* It  was  provided  by  a subsequent  agreement  that  the  cases  undeter- 
mined by  the  commissioners  should  not  be  referred  to  the  Swiss  Cantons 


INTERNATIONAL  ARBITRATION 


213 


who  shall  be  requir’d,  by  the  Instrument  already  agreed  on,  to 
assume  that  Arbitration  in  such  Case  and  to  delegate  Commis- 
sions of  like  nature  for  the  same  purpose,  so  instructed  that  they 
shall  give  Judgment  within  the  six  months  next  following  the 
expiration  of  those  three  months;  and  whatsoever  such  Com- 
missions, or  the  major  part,  shall  determine  within  the  said  six 
months,  shall  bind  both  Parties,  and  be  well  and  truly  per- 
form’d.” 

The  treaty  thus  provides  for  the  appointment  of  a mixed 
commission  to  be  composed  of  two  competent  persons,  selected 
by  each  of  the  contracting  parties,  in  the  hope  that  they  would 
reach  an  agreement  and  thus  terminate  the  difficulty;  but 
contemplating  their  inability  to  agree,  the  treaty  provides  for 
the  submission  to  the  arbitration  of  a neutral  power. 

The  commission  delivered  its  sentence  concerning  the  Eng- 
lish ships  and  effects  seized  and  detained  in  the  dominions 
of  the  King  of  Denmark,  since  the  18th  of  May,  1652  (Article 
28),  on  July  31,  1654,  ^ and  on  August  30,  1654,  the  com- 

for  settlement,  but  should  be  referred  and  resubmitted  to  the  judgment 
and  arhitratiou  of  the  commissioner  “who  published  the  said  award  and 
arbitration  [of  August  30,  1654]  or  of  others  who  shall  be  nominated  and 
constituted  on  both  sides.” — Jenkinson’s  Treaties,  pp.  66-68. 

* When  after  the  recital  of  so  much  of  the  said  treaty  as  relates  hereto, 
and  that  the  merchants  had  conformed  to  the  methods  prescribed,  and  the 
commissioners,  Edward  Winslow,  James  Russell,  John  Bex,  and  William 
Van  der  Cruysen,  examined  and  duly  deliberated  upon  the  matters  before 
them;  they,  the  said  commissioners,  do  under  their  hands  and  seals  deter- 
mine to  decide  and  finally  pronounce,  that  the  damages  so  often  mentioned, 
amount  to  97,973  pounds  and  ten  pence,  lawful  money  of  England : and 
are  accordingly  so  taxed  and  liquidated,  and  do  therefore  decide  and  pro- 
noimce,  that  the  said  Lords  the  States  General  shall  pay  or  cause  to  be  paid 
the  sum  of  97,973  pounds  and  ten  pence,  lawful  English  money  in  London, 
for  the  use  of  the  respective  owner,  to  such  person  or  persons  as  his  High- 
ness the  Lord  Protector  shall  appoint,  within  twenty-five  days  after  this 
our  award. 

Indorse.  In  witness,  &c. 

N.  B. — That  we  the  commissioners  do  find  that  the  sum  of  5000Z.  ster- 
ling, and  20,000  rixdollars,  amounting  together  to  the  sum  of  10,000f. 
sterling,  is  paid,  which  according  to  the  tenor  of  the  28th  article  is  to  be 
reckoned  in  part  of  payment  of  the  above  sum,  declared  as  above  men- 
tioned. 

In  witness,  &c. 

— Jenkinson’s  Treaties,  Vol.  I,  pp.  50-51. 


214 


THE  HAGUE  PEACE  CONFERENCES 


missioners  appointed  in  pursuance  of  the  thirtieth  article  to 
appraise  the  losses  of  the  East  and  West  India  Companies 
delivered  a careful,  detailed  and  definitive  sentence.* 

The  treaty  with  Holland  was  not  an  isolated  example  of 
Cromwell’s  wisdom  in  settling  international  controversies  by 
judicial  and  therefore  peaceable  means;  for  example,  the  treaty 
of  Westminster  of  July  10,  1654,  between  England  and  Por- 
tugal, provided  that  “Demands  on  account  of  Losses  shall 
be  referred  to  Arbitration  for  Satisfaction”  and  constituted 
a commission,  composed  of  two  Englishmen  and  two  Portu- 
guese, to  sit  at  London  on  the  20th  of  July,  1654,  and  to 
deliver  their  sentence  on  or  before  the  first  Day  of  Septem- 
ber. In  case  of  failure  to  agree,  the  cases  undetermined  were 
to  be  referred  “to  such  Member  of  the  Lord  Protector’s  Privy 
Council  as  the  said  Lord  Protector  shall  nominate,”  whose 
decision  was  to  be  final  and  decisive.^ 

Article  24  of  the  treaty  of  Westminster  of  November  3, 
1655,  between  Cromwell  and  Louis  XIV,  provided  that 
“Whereas  since  the  Year  1640  many  prizes  have  been  taken 
at  Sea  and  both  Nations,  their  People  and  Subjects,  have 
suffered  many  Losses,  ’tis  agreed  that  three  Commissioners 
shall  be  appointed  on  both  sides”  to  settle  the  controversies 
at  London,  and  in  case  of  their  inability  to  agree  within  six 
months  and  a fortnight,  the  City  of  Hamburg  was  to  be  re- 
quested to  delegate  commissioners,  whose  arbitration  was  to  be 
final  and  their  award  made  within  four  months.®  Article  25 
is  of  special  interest  to  the  American  public,  for  it  provides 
that  the  right  of  either  of  the  contracting  parties  to  the  three 
forts  of  Pentacost,  St.  John,  and  Port  Royal  in  America  shall 
be  determined  by  the  same  commissioners.  We  thus  are 
afforded  the  pleasing  spectacle  of  Louis  XIV  at  the  very  be- 


* The  complaints  of  the  litigating  parties  are  set  forth  at  length  in  Jen- 
kinson’s  Treaties,  Vol.  I,  pp.  51-66. 

^ A General  Collection  of  Treatys,  Vol.  Ill,  pp.  106,  et  seq.;  Jenkinson’s 
Treaties,  Vol.  I,  pp.  71-75. 

’ A General  Collection  of  Treatys,  Vol.  Ill,  pp.  157,  et  seq.;  Jenkinson’s 
Treaties,  Vol.  I,  pp.  81-85. 


INTERNATIONAL  ARBITRATION 


215 


ginning  of  his  career  submitting,  under  the  influence  of  Crom- 
well, to  arbitration. 

And,  finally,  by  Article  7 of  the  Treaty  of  Westminster  of 
July  15,  1656,  between  Cromwell  and  Sweden,  it  was  provided 
that  three  commissioners  shall  be  delegated  and  deputed  on 
each  side  to  adjust  the  differences  and  to  settle  the  losses 
arising  from  capture  during  the  war  between  England  and 
the  Netherlands.* 

These  various  treaties  of  arbitration  negotiated  by  Crom- 
well do  indeed,  to  quote  the  language  of  the  tory  Jenkinson 
(first  Lord  Liverpool), 

illustrate  the  bright  side  of  this  man,  who  in  the  light  these 
particulars  shew  him,  is  worthy  imitation;  therefore  those  who 
write  or  speak  of  him  with  an  invidious  warmth,  should  consider, 
that  if  these  facts  be  true,  and  that  they  cannot  shew  the  same 
in  behalf  of  their  favorite.kings,what  aterrible  sarcasm  it  is  upon 
them,  that  a man  whom  they  villify  and  abuse,  is  proved  to  be 
infinitely  wiser  and  honester  than  either  such  kings,  or  their 
advocates;  and  consequently  in  abusing  him,  express  their  con- 
tempt for  virtue,  and  at  the  same  time  make  their  kings  less 
estimable  than  the  person  whom  they  would  have  wicked  be- 
yond expression. 

And  in  speaking  of  the  convention  as  a whole,  the  same 
learned  author  declares  that  the  ‘Treaties  are  of  a piece  with 
all  the  rest  of  Cromwell’s  negotiation,  and  speak  so  well  for 
themselves  as  not  to  need  illustration.”^ 

It  is  evident,  therefore,  that  the  submission  to  mixed  com- 
missions of  disputed  claims  for  indemnity,  as  well  as  the  arbi- 
tration of  disputed  territory,  was  long  familiar  to  English 
publicists  and  statesmen,  and  it  is  not  astonishing  that  the 
request  of  Jay  to  submit  the  boundary  disputes  and  the  claims 
of  British  subjects  and  American  citizens  to  mixed  commis- 
sions should  find  favor  with  a British  cabinet  in  which  Jenkin- 
son, the  chronicler  of  these  details,  was  an  honored  and  influ- 
ential member.  The  judicial  settlement  of  international  dis- 


' A General  Collection  of  Treatys,  Vol.  Ill,  pp.  169,  et  seq.;  Jenkinson ’s 
Treaties,  Vol.  I,  pp.  98-101. 

^ Jenkinson’s  Treaties,  Vol.  I,  p,  68. 


216 


THE  HAGUE  PEACE  CONFERENCES 


putes  is  in  the  blood  of  the  Saxon,  and  arbitration  is  in  no 
small  sense  the  gift  of  the  English-speaking  world. 

5.  Composition  of  the  Arbitral  Tribunal 

To  revert  to  Jay’s  Treaty  of  1794  which  is,  as  previously 
stated,  the  starting  point  of  modern  arbitration.  Article  V 
provided  that  Great  Britain  and  the  United  States  should 
each  appoint  a commissioner  and  should  agree  upon  a third. 
In  case  of  their  inability  to  agree,  each  should  propose  the 
name  of  a person  and  from  the  two  names  so  proposed  one 
should  be  drawn  by  lot  in  the  presence  of  the  original  com- 
missioners. The  commissioners  were  to  decide  according  to 
the  evidence  submitted  to  them  by  Great  Britain  and  the 
United  States  “what  river  is  the  river  St.  Croix,  intended  by 
the  treaty”  (of  1783),  and  on  October  25,  1798,  the  commis- 
sioners rendered  an  award  at  Providence,  R.  I.,  holding  that 
the  Schoodiac  was  the  river  intended  under  the  name  of  the 
St.  Croix. 

Article  IV  of  the  Treaty  of  1783  provided  that 

creditors  on  either  side  shall  meet  with  no  lawful  impediment 
to  the  recovery  of  the  full  value  in  sterhng  money,  of  all  bona 
fide  debts  heretofore  contracted; 

but,  notwithstanding  this  stipulation,  certain  of  the  United 
States  had  interposed  impediments  to  the  collection  of 
British  debts.  To  settle  the  unfortunate  controversy,  which 
reflected  not  a little  upon  the  good  faith  of  the  United  States, 
Article  VI  of  the  Treaty  of  1794  provided  that  five  commis- 
sioners were  to  be  appointed,  two  by  Great  Britain,  two  by  the 
United  States,  and 

the  fifth  by  the  unanimous  voice  of  the  other  four;  and  if  they 
should  not  agree  in  such  choice,  then  the  commissioners  named 
by  the  two  parties  shall  respectively  propose  one  person,  and  of 
the  two  names  so  proposed,  one  shall  be  drawn  by  lot,  in  the 
presence  of  the  four  original  commissioners.” 

The  subject  was  in  itself  difficult,  and  its  settlement  required 


INTERNATIONAL  ARBITRATION 


217 


patience  and  no  small  degree  of  tact.  The  British  commission- 
ers were  lamentably  wanting  in  these  qualities,  and  the  Ameri- 
can members  withdrew  from  the  commission.  By  the  Treaty 
of  January  8,  1802,  the  British  Government  accepted  the 
lump  sum  of  £600,000  in  satisfaction  of  its  demands.  It  is 
thus  seen  that  arbitration  under  Article  V was  unimportant, 
and  that  the  commission  constituted  by  virtue  of  Article  VI 
failed  miserably  to  settle  the  controversy  submitted  to  it. 

The  success  and  the  importance  of  the  treaty  depended  upon 
Article  VII,  which  stated  that 

Whereas  ....  divers  merchants  and  others,  citizens  of 
the  United  States,  ....  have  sustained  considerable  losses 
and  damage  during  the  war  between  Great  Britain  and  France 
by  reason  of  irregular  or  illegal  captures  or  condemnations  of 
their  vessels  and  other  property,  under  color  of  authority  or 
commissions  from  His  Majesty,  and  that  from  various  circum- 
stances belonging  to  the  said  cases,  adequate  compensation  for 
the  losses  and  damages  so  sustained  cannot  now  be  actually 
obtained,  had,  and  received  by  the  ordinary  course  of  judicial 
proceedings;  it  is  agreed,  that  in  all  such  cases,  where  adequate 
compensation  cannot,  for  whatever  reason,  be  now  actually 
obtained,  had,  and  received  by  the  said  merchants  and  others, 
in  the  ordinary  course  of  justice,  full  and  complete  compensa- 
tion for  the  same  will  be  made  by  the  British  Government  to  the 
said  complainants. 

To  determine  such  losses  and  damages,  five  commissioners 
were  to  be  appointed  and  authorized  to  act  in  London,  who 
should  receive  testimony,  books,  papers  and  evidence  to  sup- 
port the  various  claims  submitted  and  decide  '‘the  claims  in 
question  according  to  the  merits  of  the  several  cases,  and  to 
justice,  equity  and  the  laws  of  nations.  ” It  was  provided  fur- 
ther that  the  award  of  the  said  commissioners  or  of  any  three 
of  them  should  “in  all  cases  be  final  and  conclusive,  both  as 
to  the  justice  of  the  claim,  and  the  amount  of  the  sum  to  be 
paid  to  the  claimant.  ” 

The  article  contained  like  provisions  for  the  settlement  of 
claims  of  British  subjects  for  the  losses  and  damage  sustained 

by  reason  of  the  capture  of  their  vessels  and  merchandise, 
taken  within  the  limits  and  jurisdiction  of  the  States  and  brought 


218 


THE  HAGUE  PEACE  CONFERENCES 


into  the  ports  of  the  same,  or  taken  by  vessels  originally  armed 
in  ports  of  the  said  States. 

The  five  commissioners  were  to  be  appointed  as  provided 
in  Article  VI;  that  is  to  say,  two  by  each  of  the  contracting 
parties  and  the  fifth  by  agreement  or  by  lot.  The  four  com- 
mdssioners  were  unable  to  agree.  In  accordance  with  the 
usual  practice  in  such  cases,  each  side  would  have  presented 
the  name  of  a partisan,  but  in  order  to  secure  impartiality  each 
side  presented  a list  of  four  names  from  which  list  the  other 
side  selected  a name  and  from  these  two  one  was  drawn  by 
lot.  The  name  of  Col.  Trumbull  was  selected  by  this  ingenious 
method.  The  American  commissioners  were  Christopher  Gore 
and  William  Pinkney,  the  distinguished  lawyer.  The  British 
commissioners  were  John  Nicholl,  a very  eminent  civilian 
(afterwards  succeeded  by  Maurice  Swabey),  and  John  Anstey. 
The  fifth  commissioner,  Col.  Trumbull,  the  well  known  artist, 
had  been  Mr.  Jay’s  secretary  in  the  negotiation  of  the  treaty. 

The  commission  was  completely  successful.  The  cases  pre- 
sented involved  contraband,  the  rights  and  duties  of  neu- 
trals, the  right  of  the  commission  to  determine  its  competency, 
and  jurisdiction,  and  the  finality  of  decisions  of  prize  courts. 
Important  in  themselves,  the  opinions  of  the  commissioners 
are  remarkably  careful  and  profound  specimens  of  legal  reason- 
ing. Pinkney’s  opinion  in  the  case  of  the  Betsey  (1)  on  the 
alleged  finality  of  the  decisions  of  prize  courts  was  regarded  as 
a masterpiece  at  the  time  of  its  delivery  and  is  a classic  in  the 
subject  of  which  it  treats.*  The  commissioners  not  only  justi- 
fied their  appointment  by  settling  to  the  satisfaction  of  both 
countries  difficult  and  intricate  questions  of  international 
law,  but  the  result  of  their  labors  showed  the  possibilities  of  a 
commission  composed  of  competent  jurists.  The  superiority 
of  a mixed  commission  thus  composed  to  a commission  com- 
posed of  diplomats  was  patent  and  undeniable. 

The  composition  of  the  tribunal,  however  effective,  is  sub- 
ject to  serious  criticism,  for  the  fifth  commissioner,  who  might 


'Moore,  Int.  Arb.,  Vol.  Ill,  p.  3180, 


INTERNATIONAL  ARBITRATION 


219 


be  called  upon  to  decide  the  question  submitted,  and  who  ac- 
tually did  decide  various  questions,  was  intended  to  be  a sub- 
ject or  citizen  of  the  countries  in  litigation.  It  is  difficult  for 
the  umpire  in  such  cases  to  be  absolutely  impartial,  and  the 
suggestion,  or,  indeed,  the  suspicion,  of  partiality  tends  to 
discredit  an  award.  As  M.  Renault  has  aptly  said: 

it  is  important  in  the  highest  degree  that  justice  be  not  merely 
just,  but  that  it  appear  to  be  so.  It  is  absolutely  necessary  that 
we  cannot  suppose  that  various  influences  have  made  them- 
selves felt  and  that  the  judge’s  vote  took  an  account  of  considera- 
tions other  than  those  of  justice.  The  award  then  will  have 
not  only  the  effect  of  terminating  the  actual  controversy;  it 
will  have  an  unquestioned  moral  value.  ^ 

If  the  commission  be  composed  of  representatives  from  the 
parties  in  controversy,  it  is  in  the  interest  of  justice  indispens- 
able that  the  umpire  shall  be  a stranger  to  the  dispute. 

Opposed  to  the  mixed  commission  is  the  arbitration  of  a 
single  individual,  generally  a sovereign,  to  whom  the  question 
is  submitted  for  settlement.  A defect  of  the  mixed  commis- 
sion is  the  presence  of  citizens  of  the  parties  in  litigation,  and 
a particular  fault  of  the  commissions  under  the  Jay  Treaty 
was  that  the  umpire  was  to  be  a citizen  or  subject  of  one  or  the 
other  party.  Arbitration  by  a sovereign  is  not  subject  to  this 
criticism ; for  the  sovereign  chosen  as  arbiter  will  undoubtedly 
be  a stranger  to  the  dispute,  and  his  judgment  on  this  account 
is  to  be  regarded  with  favor.  But  arbitration  by  a sovereign 
has  defects  peculiarly  its  own;  for  example,  the  entire  case  is 
submitted  to  him  without  argument,  and  he  decides  solely  on 
documentary  evidence  without  the  benefit  arising  from  the 
animated  discussion  of  counsel.  In  the  second  place,  the  sov- 
ereign is  rarely  competent  to  master  the  case  in  all  its  details, 
and,  if  he  possesses  the  ability,  he  does  not  have  the  time  to 
sacrifice  legitimate  affairs  of  state  to  the  controversies  of 
strangers.  The  case  is,  therefore,  not  considered  by  the  sov- 
ereign, but  is  referred  to  an  official  for  examination  and  report. 

* De  Lapradelle  et  Politis:  Recueil  des  Arbitrages  Internationaux,  Vol. 
I,p.  xi. 


220 


THE  HAGUE  PEACE  CONFERENCES 


And,  finally,  the  political  situation  of  the  sovereign  requires 
that  he  be  very  circumspect  in  his  judgment,  for  in  deciding 
the  case  he  does  not  wish  to  take  sides  or  to  injure  the  sen- 
sitiveness of  either  litigant,  nor  does  he  desire  to  establish  a 
precedent  which  may  embarrass  him  or  his  country  in  the 
future.  If  the  decision  be  correct,  it  does  not  as  a rule  state 
the  reasoning  by  which  the  conclusion  is  reached,  and  while 
it  may  decide  the  immediate  controversy — there  is  but  one 
instance  of  an  award  of  a sovereign  being  rejected — ^the  judg- 
ment is  of  little  or  no  value  as  a precedent. ‘ The  strength  of 
the  mixed  commission,  on  the  contrary,  rests  in  the  reasoning 
by  which  the  conclusion  is  supported,  especially  in  Anglo- 
American  commissions,  where  each  judge  sets  forth  at  length 
the  principles  of  law  and  the  authorities  in  point  which  have 
led  him  irresistibly  to  the  conclusion  reached.  Special  refer- 
ence is  made  to  the  commission  under  Article  VII  of  the  Jay 


* Arbitration  in  the  strict  sense,  as  by  a sovereign,  has  both  good  and 
bad  qualities.  In  his  sovereign  and  independent  capacity  the  arbitrator 
can  more  freely  pronounce  his  sentence.  At  the  same  time  he  would  not 
care  to  lay  himself  or  his  ruling  open  to  criticism,  and  so  his  award  would 
very  rarely  be  accompanied  by  a statement  of  the  grounds  or  principles 
upon  which  it  was  based.  Many  important  questions  of  law  have  been 
involved  in  some  of  the  cases  of  arbitration  by  sovereigns;  thus,  the  legal 
effects  of  military  occupation  in  the  dispute  which  arose  between  Great 
Britain  and  the  United  States  as  to  the  interpretation  of  Article  1 of  the 
Treaty  of  Ghent  (December  24, 1814),  when  Alexander  I of  Russia  arbitrated; 
limits  of  the  power  of  an  arbitrator  as  to  disputed  territory  in  the  north- 
eastern frontier  case,  the  decision  of  William  I of  Holland  being  rightly 
repudiated,  because  he  disregarded  the  terms  of  the  reference;  the  ques- 
tion of  blockade  in  the  Portendic  affair  (1843),  the  award  of  Frederic  Wil- 
liam IV  of  Prussia  not  being  supported  by  stated  reasons  or  principles; 
the  effects  of  declaration  of  war  in  regard  to  the  responsibility  of  a bellig- 
rent  towards  his  adversary  in  the  arbitration  by  Queen  Victoria  betweep 
France  and  Mexico  (1844) ; the  effect  of  declaration  of  war  as  to  confiscation, 
William  III  of  Holland  arbitrating  between  France  and  Spain  (1852);  the 
responsibility  of  a neutral  State  for  belligerent  hostilities  in  its  territorial 
waters,  in  the  General  Armstrong  case,  Louis  Napoleon  arbitrating  between 
the  United  States  and  Portugal  (1852).  Some  of  these  awards  have  been 
severely  criticised,  but,  nevertheless,  they  aU  have  important  bearing  on 
the  progress  of  international  law. — PhUlipson’s  Studies  in  International 
Law,  pp.  20-22. 


INTERNATIONAL  ARBITRATION 


221 


treaty,  and,  in  a lesser  degree,  to  the  Anglo-American  com- 
mission of  1853. 

The  presence  in  the  commission  of  citizens  or  subjects  of  the 
litigating  parties  questions  in  advance  the  impartiality  of  the 
award,  and  while  the  fear  of  this  may  cause  the  commissioner 
to  fortify  his  decision  by  principle  and  precedent,  he  is,  in  no 
small  sense  of  the  word,  regarded  as  an  advocate.  If  the 
umpire  belongs  to  either  of  the  contending  parties,  the  sus- 
picion is  strengthened.  There  was  great  danger  that  this 
method  of  constituting  commissions  might  discredit  in  no 
small  measure  the  cause  of  arbitration.  ‘ 

An  attempt  was  made  to  secure  impartiality  of  the  com- 
mission by  a provision  that  a commissioner  should  be  appointed 
by  each  of  the  contending  parties,  and  in  case  of  their  disagree- 
ment reference  to  a sovereign  as  arbitrator.^  But  this  experi- 
ment failed  to  commend  itself  either  in  theory  or  practice 
and  has  been  abandoned. 

In  the  next  place,  the  commission  was  formed  by  an  equal 
number  of  citizens  of  the  contending  parties,  each  of  whom 
appointed  an  arbitrator,  from  which  two  one  was  chosen  by 
lot.®  This  innovation  was  unsatisfactory,  as  was  also  the 
appointment  of  an  umpire  by  a sovereign  designated  in  the 
treaty,  to  whom  the  two  commissioners  should  present  their 
differences.^  And  yet,  however  inadequate  the  machinery, 
the  idea  which  suggested  the  innovation  was  just,  namely, 
that  the  ultimate  decision  should  not  depend  upon  citizens 
or  subjects  of  the  contending  countries,  but  upon  a disinter- 
ested party. 

The  arbiter,  it  would  seem,  should  take  part  in  the  pro- 
ceedings from  the  beginning,  otherwise  delay  is  inevitable. 

* De  Lapradelle  et  Politis:  Recueil  des  Arbitrages  Intemationaux,  Vol. 
I,p.39. 

’Treaty  of  Ghent  between  Great  Britain  and  the  United  States,  Dec- 
ember 24, 1814. 

’ Mixed  Commission  of  1826. 

* Mixed  Commission  of  1842  and  the  Commission  of  1844  for  the  settle- 
ment of  the  Portendic  incident. — De  Lapradelle  et  Politis:  Recueil,  Vol. 
I,  pp.  512-544. 


222 


THE  HAGUE  PEACE  CONFERENCES 


Therefore,  the  modern  tendency  is,  in  cases  in  which  a mixed 
commission  is  appointed,  to  select  the  umpire  at  one  and  the 
same  time,  or  to  permit  his  selection  by  the  commissioners 
from  among  disinterested  parties,  so  that  the  casting  vote 
shall  carry  with  it  no  suggestion  or  suspicion  of  partiality. 

It  is  essential,  however,  to  the  success  of  the  commission, 
that  its  members  be  competent  lawyers,  not  diplomats,  as 
law  is  to  be  applied,  not  compromised ; for,  to  quote  again 
M.  Renault, 

international  arbitration  will  only  be  developed  seriously  in 
absolutely  leaving  the  field  of  politics  and  diplomacy,  where  it 
was  long  confined,  to  repose  in  the  judicial  field,  which  it  has 
only  entered.  It  is  on  this  sole  condition  that  confidence  will  be 
inspired  in  governments  and  people;  that  it  will  offer  guarantees 
especially  to  the  little  States,  too  often  the  victims  of  political 
considerations.  The  arbiters  are  politicians,  diplomats,  magis- 
trates, jurists  of  profound  learning.  They  are  in  the  highest 
degree  penetrated  by  interests  of  their  country,  as  is  natural, 
but  if  they  have  a correct  view  only  of  the  sacred  character  of 
the  mission  confided  to  them,  they  ought  to  develop  a judicial 
point  of  view  in  order  to  appreciate  the  difficulty  submitted  to 
them.^ 

The  essentials,  therefore,  of  a mixed  commission  are,  that 
it  be  composed  of  jurists,  capable  lawyers,  not  diplomats; 
that  the  umpire  be  selected  from  a neutral  country;  that  he 
take  part  in  the  proceedings  from  the  beginning,  so  that  he 
may  benefit  by  the  arguments  and  discussion  and  that  his 
vote  be  cast  in  the  fullness  of  knowledge. 

As  practical  examples  of  recent  and  highly  successful  arbi- 
trations in  which  the  national  element  was  represented  but 
was  controlled  by  the  presence  of  foreigners,  reference  may  be 
made  to  the  Anglo-American  Mixed  Commission  of  1872,^  the 


' De  Lapradelle  et  Politis:  Recueil  des  Arbitrages  Internationaux,  Vol. 
I,  p.  10. 

^ The  high  contractiag  parties  agree  that  all  claims,  other  than  the  Ala- 
bama claims,  arising  between  the  United  States  and  Great  Britain,  between 
April  13,  1861,  and  April  9,  1865,  inclusive,  “shall  be  referred  to  three 
commissioners,  to  be  appointed  in  the  following  manner,  that  is  to  say: 
one  commissioner  shall  be  named  by  the  President  of  the  United  States, 
one  by  Her  Britannic  Majesty,  and  a third  by  the  President  of  the  United 


INTERNATIONAL  ARBITRATION 


223 


Geneva  Arbitration  of  1872,*  and  the  Bering  Sea  Arbitration 
of  1892.^ 

The  ideal  tribunal  of  arbitration  would  be  one  before  which 
the  parties  were  represented  by  competent  agents  and  counsel, 
but  composed  of  distinguished  jurists  selected  from  foreign 
countries  who  were  not  only  strangers  to  the  controversy  but 
had  no  interest  in  its  settlement.  They  would  be  arbitrators 
in  the  highest  sense  of  the  word,  because  they  would  be  judges 
freely  chosen  by  the  parties,  though  not  from  among  their 
citizens  or  subjects.  But  nations  seem  unwilling  to  exclude 
themselves  from  the  bench  and  entrust  their  controversies 
wholly  to  strangers. 

The  two  ideas  have  struggled  for  mastery,  one  a commission 
composed  of  the  litigating  parties,  and  the  other  a decision 
by  a single  sovereign  arbitrator  who  either  is  or  is  supposed 
to  be  indifferent  to  the  controversy  in  question.  The  result 
seems  to  be  a happy  compromise,  for  the  tribunal  of  arbitra- 
tion of  the  present  day  is  composed  of  an  equal  number  of 
judges  selected  by  each  litigant  under  the  presidency  of  an 
umpire  chosen  from  a neutral  nation. 

It  will  be  seen  later  how  the  First  Hague  Conference  codified 


States  and  Her  Britannic  Majesty  conjointly;  and  in  case  the  third  com- 
missioner shall  not  have  been  so  named  within  the  period  of  three  months 
from  the  date  of  the  exchange  of  the  ratifications  of  this  treaty,  then  the 
third  Commissioner  shall  be  named  by  the  representative  at  Washington 
of  His  Majesty  the  King  of  Spain. — Treaty  of  Washington,  May  8,  1871, 
Art.  XII. 

'Treaty  of  Washington,  May  8,  1871,  Art.  I:  “The  High  Contracting 
Parties  agree  that  all  the  said  claims,  growing  out  of  acts  committed  by 
the  aforesaid  vessels,  and  generically  known  as  the  ‘Alabama  Claims,’ 
shall  be  referred  to  a tribunal  of  arbitration  to  be  composed  of  five  Arbi- 
trators, to  be  appointed  in  the  folio  wring  manner,  that  is  to  say:  One 
shall  be  named  by  the  President  of  the  United  States;  one  shall  be  named 
by  Her  Britannic  Majesty;  His  Majesty  the  King  of  Italy  shall  be  re- 
quested to  name  one;  the  President  of  the  Swiss  Confederation  shall  be 
requested  to  name  one  and  His  Majesty  the  Emperor  of  Brazil,  shall  be 
requested  to  name  one.” 

* In  the  treaty  of  February  29,  1892,  for  the  settlement  of  the  fur  seal 
question,  the  tribunal  of  arbitration  was  composed  of  seven  arbitrators 
appointed  as  follows:  “Two  shall  be  named  by  the  President  of  the  United 


224 


THE  HAGUE  PEACE  CONFERENCES 


the  practice  of  nations,  and  how  the  Second  Conference  of  1907 
attempted  to  secure  a larger  degree  of  impartiality  by  provid- 
ing that  each  litigant  should  be  limited  in  his  choice  of  arbi- 
trators to  one  of  its  citizens  or  subjects. 

Arbitration  is  so  well  known  in  history  and  in  practice  that 
opposition  to  it  as  a means  for  the  judicial  settlement  of  inter- 
national difficulties  has  well-nigh  ceased.  It  is  insisted,  how- 
ever, that  certain  questions  involving  the  independence,  vital 
interests  or  honor  of  nations  be  excluded  from  arbitration. 
If  the  question  were  a new  one,  much  might  be  said  for  this 
limitation  or  restriction  of  the  field  of  arbitration;  but  the 
question  is  not  new,  and  the  practice  of  nations  in  the  past 
century  shows  unmistakably  that  nations  have  submitted 
such  a variety  of  questions  to  arbitration  and  have  accepted 
the  decision  when  rendered,  whether  adverse  or  favorable, 
that  the  only  limit  to  arbitration  is  the  desire  or  willingness 
of  the  contending  parties  to  resort  to  reason  rather  than  to 
force. 

6.  Frequency  of  Arbitration  in  the  Nineteenth 
Century 

It  has  been  previously  stated  that  modern  arbitration  dates 
from  Jay’s  Treaty  of  1794,  and  the  first  award  under  it  was 
made  in  1798,  so  that  exactly  one  hundred  years  elapsed  until 
the  call  of  the  First  Hague  Conference.  Arbitrations  in  this 
period  were  very  frequent.  Writers  differ  as  to  the  exact 
number;  for  example.  Dr.  Darby  instances  no  less  than  471 
cases,  but  in  his  enthusiasm  for  the  peaceful  settlement  of 
international  differences  he  has  included  a large  number  of 
interstate  arrangements,  which  cannot  be  regarded  as  inter- 
states; two  shall  be  named  by  Her  Britannic  Majesty;  His  Excellency  the 
President  of  the  French  Republic  shall  be  jointly  requested  by  the  High 
Contracting  Parties  to  name  one;  His  Majesty  the  King  of  Italy  shall  be 
so  requested  to  name  one;  and  His  Majesty  the  King  of  Sweden  and  Norway 
shall  be  so  requested  to  name  one.  The  seven  arbitrators  to  be  so  named 
shall  be  jurists  of  distinguished  reputation  in  their  respective  countries; 
and  the  selected  Powers  shall  be  requested  to  choose,  if  possible,  jurists 
who  are  acquainted  with  the  English  language.”  (Article  I.) 


INTERNATIONAL  ARBITRATION 


225 


national  arbitrations  in  the  strict  sense  of  the  word.*  Mr. 
Fried,  in  his  Handbook  of  the  Peace  Movement,  enumerates 
some  200.*  M.  La  Fontaine  gives  a list  of  177  instances  to 
the  year  1900,  which  should  be  reduced  to  171  arbitrations 
or  agreements  to  arbitrate  before  the  meeting  of  the  First 
Conference  in  1899.®  Professor  John  Bassett  Moore  is  more 
conservative  and  enumerates  136  cases  of  international  arbi- 
tration during  the  nineteenth  century,  in  57  of  which  the 
United  States  was  a party,  with  a like  number  of  57  to  which 
Great  Britain  has  been  a party.* 

But,  as  happily  said  by  M.  Descamps,  arbitration  is  not  a 
question  of  mathematics,®  and  whether  the  instances  be  471, 
according  to  Darby,  or  136,  according  to  Professor  Moore,  the 
recourse  to  arbitration  bids  fair  to  become  a habit  with  nations. 

The  chronological  enumeration  of  the  instances  of  arbitra- 
tion would  be  wearisome  and  unprofitable,  for  the  present 
purpose  is  twofold : to  show  the  frequency  with  which  nations 
resort  to  arbitration,  and  to  indicate  at  one  and  the  same 
time  the  nature  of  the  controversies  arbitrated.  A simple 
statement  of  the  number  of  instances  suffices  for  the  first  head; 
a brief  statement  of  some  of  the  more  important  questions, 
with  a classification  of  the  various  subjects  arbitrated,  will 
suffice  to  show  the  nature  and  extent  of  arbitration  within 
the  hundred  years  preceding  the  First  Hague  Conference. 

* Darby’s  International  Tribunals,  4th  ed.,  pp.  769-900. 

* Fried,  pp.  125-153. 

^ Histoire  Sommaire  et  Chronologique  des  Arbitrages  Internationaux 
(1794-1900). 

* A Hundred  Years  of  American  Diplomacy,  14th  Harvard  Law  Review, 
165,  pp.  182-183,  notes. 

‘Mais  I’exactitude  math4matique  est  secondaire  ici:  ce  qui  n’est  pas 
contestable,  c’est  que  les  cas  d’arbitrage,  fort  clairsem4s  I’origine  offrent 
h,  I’annaliste  une  moisson  de  plus  en  plus  riche  de  pr4c6dents  juridiques 
int4ressants. — Essai  sur  I’organisation  de  1’ arbitrage  International  (1896), 
p.  16.  This  admirable  essay,  prepared  at  the  instance  of  the  Interparlia- 
mentary Union,  is  also  printed  in  Revue  de  droit  International  et  de 
legislation  comparee,  Vol.  XXVIII,  (1896),  pp.  5-74. 

See  also,  M.  Descamps’  Relev^  General  des  clauses  de  mediation  et 
d’ Arbitrage,  prepared  at  the  request  of  the  First  Peace  Conference  and 
printed  in  Conference  Internationale  de  la  Paix,  1899,  part  I,  pp.  138-151. 


226 


THE  HAGUE  PEACE  CONFERENCES 


M.  La  Fontaine  arranges  in  tabular  form  the  arbitrations 
from  1794  to  1900.  To  the  period  from  1794  to  1800  he  assigns 
four  arbitrations;  to  the  period  from  1801  to  1820,  eleven;  from 
1821  to  1840,  eight;  from  1841  to  1860,  twenty;  from  1861  to 
1880,  forty-four;  from  1881  to  1900,  ninety.  It  is  thus  seen 
that,  excluding  from  consideration  the  period  from  1794  to 
1820,  when  arbitration  was  slowly  but  surely  coming  into 
favor,  arbitration  has  doubled  within  each  period. ‘ 

Jay’s  Treaty  was  negotiated  to  prevent  war,  but  it  should 
not  be  looked  upon  as  a concession  to  fear,  although  an  appeal 
to  reason,  whatever  the  motive  may  be,  is  always  preferable 
to  an  appeal  to  arms,  on  the  theory  that  even  a bad  peace  is 
preferable  to  war.  It  represented  the  firm,  and,  it  is  to  be 
hoped,  the  unalterable  conviction  of  our  country  that  war,  if 
ever  permissible,  can  only  be  a last  resort,  and  that  it  is  a crime 
to  draw  the  sword  for  the  redress  of  wrongs  if  peaceful  means 
can  be  found  or  devised  to  settle  an  international  controversy. 


* The  following  table,  taken  from  M.  La  Fontaine,  shows  the  participation 
of  each  State  in  arbitration: 


Great  Britain 70 

United  States  of  America 56 

Chili 26 

France 26 

Peru 13 

Portugal 12 

Brazil 11 

Argentina 10 

Spain 10 

Nicaragua 9 

Italy 8 

Mexico 8 

Venezuela 7 

Colombia 6 

Gautemala 6 

Honduras 6 

Costa-Rica 5 

Ecuador 5 

The  Netherlands 5 

Haiti 4 

Russia 4 


Bolivia 3 

Paraguay 3 

Salvador 3 

Transvaal 3 

Austria 2 

Belgium 2 

Greece 2 

San  Domingo 2 

Siam 2 

Sweden  and  Norway 2 

Switzerland 2 

Uruguay 2 

China 1 

Congo 1 

Denmark 1 

Egypt 1 

Japan 1 

Orange 1 

Persia 1 

Turkey 1 


— Histoire  Sommaire  et  Chronologique  des  Arbitrages  Internationaux, 
1794-1900,  pp.  4 and  5. 


INTEKNATIONAL  ARBITRATION 


227 


In  the  midst  of  the  Revolution  Dr.  Franklin  wrote: 

We  make  daily  great  improvement  in  natural,  there  is  one  I 
wish  to  see  in  moral,  philosophy:  the  discovery  of  a plan  which 
will  induce  and  oblige  nations  to  settle  their  disputes  without 
first  cutting  one  another’s  throats. 

A statement  equally  honorable  to  the  statesman  and  the  coun- 
try he  represented.  In  enlightened  communities  of  the  ancient 
world  arbitration  had  been  considered  a means  of  ascertaining 
the  justice  of  a dispute,  and  it  was  further  recognized  that 

against  one  who  offers  to  submit  to  justice  you  must  not  pro- 
ceed as  against  a criminal  until  his  cause  has  been  heard. 

But  a desire  to  do  justice  in  international  as  well  as  in  private 
disputes  presupposes  not  merely  a reverence  for  law  but  a 
high  degree  of  civilization,  and  therefore  it  is  that  arbitration 
in  the  ancient  world  was  principally  confined  to  the  Greek 
communities. 

The  unfitness  of  war  as  the  handmaid  of  justice  is  more 
evident  in  the  concrete  than  in  the  abstract,  and  we  therefore 
find,  as  has  been  happily  said, 

that  the  successive  stages  in  the  growth  of  arbitration  syn- 
chronize with  the  terminaton  of  great  and  exhaustive  wars.^ 

As  war  is  seen  to  be  disastrous  to  the  many,  although  it  may 
subserve  the  selfish  purpose  of  a ruler  not  personally  exposed 
to  its  dangers  and  who  does  not’  feel  its  effects,  it  follows  that 

its  more  general  acceptance  runs  parallel  with  the  decline  of 
autocratic  institutions  and  with  the  spread  of  freedom.* 

As  constitutional  liberty  is  at  once  the  creation  and  justifica- 
tion of  English  supremacy,  we  are  prepared  to  accept  the 
statement  of  a recent  and  careful  writer  that 

its  recognition  as  an  important  principle  in  the  law  of  nations, 
as  well  as  the  framing  of  the  rules  which  now  govern  its  practice, 

' Gennadius:  A Record  of  International  Arbitration,  in  Broad  Views 
(1904),  Vol.  I,  p.  396. 

* Ibid. 


228 


THE  HAGUE  PEACE  CONFERENCES 


are  due  almost  exclusively  to  the  two  great  branches  of  the 
Anglo-Saxon  race.  Their  political  genius,  their  aptitude  in 
devising  and  in  working  free  institutions,  enable  them  to  render 
to  civilization  services  which  are  but  the  continuation  of  those 
benefits  which  the  Greeks  of  old  bestowed  upon  humanity.  ‘ 

A young  republic  just  emerging  from  a conflict  in  which  its 
independence  was  recognized,  with  no  traditions  which  fet- 
tered the  hands  of  the  statesman  and  forced  a line  of  conduct 
inconsistent  with  its  national  interests,  a form  of  government 
in  which  the  people  imposed  upon  its  servants  a policy  in  the 
interest  of  all  rather  than  in  the  interest  of  the  many  or  the 
few,  a reverence  for  law  as  the  firm  basis  upon  which  order  and 
prosperity  must  inevitably  rest,  and  the  creation  of  machinery 
by  which  controversies  between  erstwhile  sovereign  states 
could  sue  and  be  sued  in  a court  of  justice  for  the  ascertain- 
ment of  the  facts  in  a controversy  and  the  application  of  a 
principle  of  law  and  justice  for  their  solution,  explain  why  the 
United  States  should  accept  the  principle  of  arbitration  and 
by  practice  raise  it  to  the  dignity  of  an  institution. 

It  is  essential,  however,  in  a judicial  proceeding  that  the 
suitor  shall  not  be  advocate  and  judge  in  his  own  cause,  for, 
as  the  great  Lord  Stair  has  admirably  said : 

Kings  and  States  ought  not  to  be  both  judges  and  parties, 
where  others  can  be  had;  but  before  they  enter  into  war, 
they  ought  to  demand  satisfaction  and  give  sufl&cient  evidence  of 
the  fact,  and  not  decline  arbitration  when  an  independent  judge 
can  be  had.  ^ 

The  policy  of  the  United  States  has  been  not  merely  to  pro- 
claim arbitration  but  to  make  it  a judicial  proceeding;  but  the 
inherent  difficulty  has  been  and  is  to  find  “an  independent 
judge”  or  judicial  body  to  whom  the  nations  of  the  world  may 

* Gennadius:  A Record  of  International  Arbitration,  in  Broad  Views 
(1904),  Vol,  I,  p.  396. 

^Stair’s  Vindication  of  Divine  Perfections,  Mediation  XIV  (1695). 

In  another  passage  Stair  writes:  “If  it  were  not  for  these  provisions  the 
whole  Race  of  Mankind  might  become  one  Commonwealth,  God  having 
given  an  inbred  Principle  to  Mankind  to  prefer  the  interest  of  the  whole 
to  that  of  any  part.”  (Vindication,  p.  252.)  Quoted  from  Mackay’s 
Memoir  of  Sir  James  Dalrymple,  1st  Viscoxmt  Stair,  p.  281,  note  3. 


INTERNATIONAL  ARBITRATION 


229 


be  willing,  in  confidence  and  security,  to  submit  a controversy 
for  impartial  and  judicial  decision. 

7.  Examples  of  Arbitration — Principally  American 

The  importance  of  Jay’s  Treaty  does  not  lie  solely  in  the 
fact  that  it  offers  an  example  of  arbitration  between  the  Eng- 
lish-speaking countries,  or  that  it  marks  the  beginning  of  an 
era  of  arbitration;  it  expressed  the  sober  reason  and  mature 
conviction  of  our  people  that  international  difficulties  not  only 
could  but  should  be  settled  by  judicial  and  therefore  peaceful 
means;  it  outlined  the  policy  of  this  country  in  its  foreign  rela- 
tions, and  is  but  the  beginning  of  a series  of  treaties  by  which 
the  United  States  has  sought  to  persuade  foreign  governments 
to  settle  judicially  international  public  controversies  which 
reasonable  men  would  refer  to  established  courts  or  to  private 
arbitration  for  settlement.  For  example,  in  the  very  next 
year  (October  27,  1795)  the  United  States  negotiated  a treaty 
with  Spain  by  the  twenty-first  article  of  which  it  is  agreed  to 
refer  to  the  final  decision  of  three  commissioners  “according 
to  the  merits  of  the  several  cases,  and  to  justice,  equity,  and 
the  laws  of  nations,”  claims  growing  out  of  the  illegal  capture 
of  vessels  by  Spanish  subjects  during  the  late  war  between 
Spain  and  France.  And  in  the  year  1802  (August  11)  a con- 
vention was  signed  by  the  United  States  and  Spain 

to  adjust  the  claims  which  have  arisen  from  the  excesses  com- 
mitted during  the  late  war,  by  individuals  of  either  nation,  con- 
trary to  the  laws  of  nations  or  the  treaty  existing  between  the 
two  countries, 

by  means  of  a board  of  commissioners,  to  consist  of  five  mem- 
bers, two  of  whom  should  be  appointed  by  each  signatory 
and  the  fifth  by  the  commissioners,  or,  should  they  fail  to 
agree,  to  be  drawn  by  lot. 

It  is  no  reflection  upon  the  United  States  that  the  conven- 
tion or  treaty  of  1802  was  not  carried  into  effect;  it  rather 
shows  the  difficulties  often  involved  in  arbitration.  What 
arbitration  failed  to  accomplish  diplomacy  effected,  and  by 


230 


THE  HAGUE  PEACE  CONFERENCES 


the  Treaty  of  February  22,  1819,  the  United  States  released 
Spain  from  liability  for  all  claims  of  American  citizens  (Article 
IX)  and  assumed  the  obligation  to  satisfy  them  to  the  extent 
of  five  million  dollars,  in  consideration  of  the  cession  of  Florida 
to  the  United  States. 

Turning  now  to  France,  it  appears  that  in  the  year  1803, 
(April  30)  a convention  was  negotiated  between  the  United 
States  and  France  for  the  payment  of  various  “debts”  due 
by  France  to  citizens  of  the  United  States,  contracted  before 
the  thirtieth  of  September,  1800,  arising  for  supplies  embar- 
goed and  prizes  made  at  sea.  In  consideration  of  the  cession  of 
Louisiana,  the  United  States  assumed  the  payment  of  all  such 
debts  as  should  be  established  by  a commission  of  three  per- 
sons. Other  and  later  claims  were  untouched  by  the  conven- 
tion. In  other  words,  the  United  States  assumed  the  payment 
of  certain  specified  claims  of  its  citizens  in  consideration  of  the 
cession  of  Louisiana,  just  as  by  the  Treaty  of  1819  with  Spain 
the  United  States  assumed  the  payment  of  claims  of  its  citi- 
zens against  Spain  in  exchange  for  the  cession  of  Florida. 

The  claims,  however,  of  American  citizens  against  France 
for  the  unlawful  seizure  and  confiscation  of  American  property, 
other  than  those  assumed  by  the  United  States  in  the  conven- 
tion of  1803,  were  many  and  various.  The  mutual  claims 
and  counter  claims  were  a source  of  friction  between  the  two 
countries.  After  much  delay  and  negotiation,  France  agreed, 
by  the  Treaty  of  July  4,  1831,  to  pay  to  the  United  States  “for 
unlawful  seizures,  captures,  sequestrations,  confiscations  or 
destruction  of  their  vessels,  cargoes  or  other  property,”  the 
sum  of  twenty-five  million  francs,  to  be  distributed  in  such 
manner  as  the  United  States  should  deem  proper  (Article  I), 
and  the  United  States  on  its  part  paid  the  sum  of  one  million, 
five  hundred  thousand  francs  in  full  settlement  of  claims  of 
French  citzens  against  the  United  States  (Article  III). 

It  has  been  said  that  the  United  States  is  a partisan  of  the 
judicial  settlement  of  international  disputes,  an(l  in  further 
evidence  of  this,  I call  attention  to  the  fact  that  for  the  settle- 
ment of  the  claims  of  American  citizens  against  Spain  and 


INTERNATIONAL  ARBITRATION 


231 


France,  the  United  States  instituted  commissions  to  which  the 
various  claims  were  presented,  examined,  and  allowed  or  re- 
jected. These  were,  however,  purely  domestic  commissions, 
and  are  only  international  in  so  far  as  the  claims  presented 
to  them  were  international  in  their  origin. 

Jay’s  Treaty  was  negotiated  in  a time  of  peace  to  prevent 
war.  The  various  treaties  with  Spain  and  France  were  nego- 
tiated in  peace  without  a fear  of  war.  The  next  arbitration 
agreement  (the  Treaty  of  Ghent  of  December  24,  1814)  to 
which  the  United  States  was  a party  was  unfortunately  at  the 
conclusion  of  the  war  between  Great  Britain  and  the  United 
States.  It  provided  for  the  appointment  of  two  commis- 
sioners, with  eventual  submission  to  a friendly  Power  in  case 
of  disagreement,  to  determine  the  ownership  of  certain  islands 
in  the  Bay  of  Fundy  (Article  IV) ; for  two  commissioners  to 
settle  the  northern  boundary  of  Maine  (Article  V),  and  a com- 
mission likewise  composed  of  two  members  to  determine  the 
northern  boundary  of  the  United  States  from  a point  in  the 
45®  of  north  latitude  through  the  Great  Lakes  to  the  Lake  of 
the  Woods  (Articles  VI  and  VII). 

The  next  arbitration  agreement  (Convention  of  October  20, 
1818)  should  be  considered  in  connection  with  the  Treaty  of 
Ghent  which  provided  in  its  first  article  that  “any  slaves  or 
other  private  property”  taken  and  carried  away  was  to  be 
restored  to  the  party  to  which  it  belonged.  As,  however. 
Great  Britain  refused  either  to  restore  the  slaves  or  to  com- 
pensate the  owners,  Article  V of  the  convention  of  1818  agreed 
to  refer  the  controversy  to  some  friendly  sovereign  or  State, 
in  pursuance  of  which  agreement  the  matter  was  referred  to 
the  Emperor  of  Russia  as  to  the  true  construction  of  the  first 
article  of  the  Treaty  of  December  24, 1814.  The  Czar  decided 
that  the  United  States  of  America  were  entitled  to  a just 
indemnification,  from  Great  Britain,  for  all  private  property 
carried  away  by  the  British  forces;  and  as  the  question 
regards  slaves  more  especially,  for  all  such  slaves  carried 
away  by  the  British  forces.  For  the  purpose  of  ascertaining 
the  indemnity  to  which  the  United  States  was  entitled  under 


232 


THE  HAGUE  PEACE  CONFERENCES 


the  award  of  the  Czar,  the  United  States  and  Great  Britain 
agreed  in  1822  to  appoint  two  commissioners  and  two  arbitra- 
tors, with  the  curious  provision  that  if  the  commissioners 
should  disagree 

they  shall  draw  by  lot  the  name  of  one  of  the  two  Arbitrators 
who,  after  having  given  due  consideration  to  the  matter  con- 
tested, shall  consult  with  the  Commissioners;  and  a final  deci- 
sion shall  be  given,  conformably  to  the  opinion  of  the  majority 
of  the  two  Commissioners  and  of  the  Arbitrator  so  drawn  by 
lot.* 

It  is  scarcely  necessary  to  state  that  the  selection  of  the  umpire 
by  this  method  has  failed  to  commend  itself  to  partisans  of 
arbitration.  It  is  interesting,  however,  as  showing  how  slowly, 
painfully  and  unwillingly  nations  have  come  to  the  conception 
that  the  umpire  should  be  selected  from  a neutral  and  disinter- 
ested country. 

It  will  not  escape  observation  that  these  various  treaties 
for  arbitration  were  concluded  upon  the  initiative  of  the  United 
States  during  the  period  in  which  Europe  was  in  the  throes  of 
the  French  Revolution,  and  had  not  succeeded  in  throwing  off 
the  yoke  which  the  misguided  genius  of  Napoleon  had  imposed. 
As  arbitration  brings  forth  its  fruit  in  times  of  peace  and 
as,  wearied  by  war,  men  and  nations  see  the  advantage  of  a 
peaceful  settlement,  which  decides  the  controversy  without 
disturbing  the  rights  of  others,  it  is  not  strange  that  the  allies 
relegated  to  arbitration  certain  matters,  more  detailed  and 
intricate  than  they  were  important  politically,  and  that  the 
Congress  of  Vienna  itself  provided  for  the  arbitration  of  certain 
matters,  although  this  recognition  of  arbitration  was  not  due 
to  any  belief  in  its  inherent  reasonableness,  but,  it  would 
seem,  to  a desire  to  relieve  diplomacy. 

Arbitration  was  practically  weak  and  untried,  and  un- 
able to  stand  alone  without  the  aid  of  diplomacy.  There- 

* Article  V of  the  Convention  of  June  30-July  12,  1822,  for  indemnity 
under  award  of  Emperor  of  Russia  as  to  True  Construction  of  First  Article 
of  Treaty  of  December  24,  1814. 


INTEKNATIONAL  ARBITRATION 


233 


fore,  the  conventions  between  France  and  Great  Britain,  of 
November  20,  1815,  and  of  Austria,  France,  Great  Britain, 
Prussia  and  Russia,  of  an  even  date,  for  the  arbitration  by 
commissions  of  the  vast  sums  due  by  France  as  indemnity  to 
the  allied  powers  for  causes  arising  out  of  the  revolutionary 
war,  failed  completely.  Arbitration  had  not  proved  itself 
a substitute  for  diplomacy,  nor  had  it  shown  itself  fitted 
to  perform  its  tasks.  Therefore,  by  conventions  signed  at 
Paris  on  April  25,  1818,  France  bound  itself  to  pay  to  the 
allies  in  extinguishment  of  its  obligations  the  immense  sum 
of  371,250,000  francs,  a reminder  to  the  victim  that  the 
aftermath  of  war  is  almost  as  costly  as  war  itself  is  destructive. 

Arbitration  has,  however,  to  its  credit  the  settlement  by 
mixed  commission  of  a controversy  between  France  and  Hol- 
land regarding  the  payment  of  arrears  of  interest  from  March 
to  September  of  the  year  1813.^ 

Leaving  out  of  consideration  the  commission  for  the  navi- 
gation of  the  Rhine  (established  by  virtue  of  the  regulations  of 
March  24,  1815,  and  the  decision  of  March  26, 1815,)*  and  the 
controversy  between  the  Swiss  cantons  of  Tessin  and  Uri 
(settled  by  an  arbitral  commission  appointed  by  virtue  of 
Article  VI  of  the  Congress  of  Vienna  of  March  20,  1815,)*  we 
find  a recognition  of  the  principle  of  arbitration  by  the  Con- 
gress of  Vienna  in  the  controversy  of  long  standing  concerning 
the  possession  of  the  duchy  of  Bouillon.  It  was,  indeed,  a 
matter  of  slight  importance  whether  the  duchy  belonged  of 
right  to  the  house  of  Auvergne  or  to  the  Prince  de  Rohan; 
but  the  action  of  the  Congress  in  submitting  the  dispute  to 
five  arbiters  chosen  respectively  by  the  claimants  on  the  one 
hand,  and  Austria,  Prussia,  and  Sardinia  on  the  other,  was 
a recognition  of  the  principle  of  arbitration  by  the  Congress 
of  Vienna  which  well  deserves  passing  notice.  Did  these  cases 
stand  alone,  they  would  have  little  claim  to  attention,  but, 

* De  Lapradelle  et  Politis;  Recueil  des  Arbitrages  Intemationaux,  Vol. 
I,  pp.  276-290. 

* Ibid.,  pp.  218-255. 

* Ibid.,  pp.  269-275. 


234 


THE  HAGUE  PEACE  CONFEEENCES 


as  the  beginning  of  arbitration  on  the  continent,  they  have 
an  interest  beyond  the  immediate  question  involved. ^ 

The  first  step  had  been  taken  and  the  regular  order  of  things 
established  by  the  Congress  of  Vienna,  however  artificially, 
and  temporarily,  gave  Europe  an  era  of  repose.  Arbitration 
had  been  tried  by  Great  Britain  and  the  United  States  and  it 
justified  the  experiment,  and  little  by  little,  especially  after 
the  period  of  1830,  Europe  began  to  look  with  favor  upon  the 
settlement  of  disputes  by  arbitration  which  diplomacy  had 
either  failed,  or  was  unwilling  or  unable,  to  settle.  For  ex- 
ample, France  and  Great  Britain  submitted  to  arbitration, 
under  agreement  of  November  14,  1842,  the  so-called  Porten- 
dic  claims,  arising  from  injuries  sustained  by  British  merchants 
in  consequence  of  the  absence  of  notification  of  the  blockade 
of  a portion  of  the  coast  of  Morocco  by  France  in  its  war  of 
1834-1835.  The  arbitration  was  of  the  Continental  variety, 
for  the  question  of  liability  was  submitted  to  a disinterested 
sovereign,  the  King  of  Prussia,  who  found  France  legally 
liable  for  the  damages  sustained  because  of  the  lack  of  notifi- 
cation. To  ascertain  the  indemnity,  each  litigant  appointed 
a commissioner,  and,  to  settle  any  difference  of  opinion  between 
them,  the  King  of  Prussia  designated  an  umpire.  The  dam- 
ages assessed  were  trifling,  less  than  forty-two  thousand  francs, 
but  the  case  is  important  in  the  development  of  arbitral  pro- 
cedure. The  principle  is  recognized  that  the  question  of 
liability  should  be  determined  by  a stranger  to  the  controversy; 
in  so  far  the  continental  theory  of  arbitration  is  recognized 
and  approved.  The  mixed  commission  is,  however,  employed 
to  assess  the  damages  arising  from  the  illegal  act  of  France, 
in  the  presence  of  an  umpire  likewise  a stranger  to  the  contro- 
versy. It  needs  no  argument  to  prove  that  two  arbitrations 
for  a question  of  secondary  importance  are  an  expensive  lux- 
ury; but  the  twofold  recognition  of  the  principle  that  the 
deciding  vote  should  be  neutral  gives  the  arbitration  an  impor- 
tance it  would  not  otherwise  possess.^ 

* De  Lapradelle  et  Politis:  Recueil  des  Arbitrages  Intemationaux,  Vol. 
I,  pp.  256-268. 

’ Ibid.,  pp.  512-545 


INTERNATIONAL  ARBITRATION 


235 


The  service  arbitration  can  perform  is  admirably  illustrated 
by  the  case  of  Don  Pacifico,  a Jew  of  Gibraltar,  who,  roughly 
handled  at  the  Easter  celebration  of  1847  in  Athens,  presented 
to  the  British  Government  a claim  against  Greece  for  over 
$150,000.  Lord  Palmerston  was  a believer  in  a stiff  foreign 
policy.  He  espoused  the  cause  of  Don  Pacifico  with  imperfect 
knowledge,  and  raised  it  to  the  dignity  of  an  international 
incident  by  using  force  against  a country  unable  to  defend 
itself.  It  is  true  that  Don  Pacifico’s  house  was  attacked  and 
plundered  by  the  mob;  it  may  be  that  he  would  have  had 
scant  justice  in  the  courts  of  the  country,  but  an  arbitral  board 
composed  of  two  members,  with  an  umpire  appointed  by 
France,  awarded  the  pitiful  sum  of  £150.  The  case  is  not 
only  an  instance  of  arbitration  but  is  a warning  to  the  foreign 
offices.  It  is  worthy  of  remark  that  the  award  of  the  com- 
missioners was  unanimous,  notwithstanding  the  fact  that  the 
States  in  controversy  were  each  represented  by  a commissioner.^ 

Three  instances  of  arbitration  deserve  mention  before  pass- 
ing to  the  Treaty  of  Washington  of  1871  which  gave  to  arbitra- 
tion an  international  importance  and  significance  which  it 
never  before  possessed  in  the  course  of  its  entire  history.  The 
three  instances  referred  to  are  the  arbitration  of  the  General 
Armstrong  of  1851,  the  Anglo-American  Mixed  Commission 
of  1853,  and  the  case  of  the  Forte  of  1863  between  Brazil  and 
Great  Britain. 

The  facts  and  the  award  in  the  case  of  the  General  Armstrong 
are  thus  stated  by  Hall  in  his  treatise  on  International  Law: 

In  1814  an  American  privateer,  the  General  Armstrong,  was 
found  at  anchor  in  Fayal  harbour  by  an  English  squadron.  A 
boat  detachment  from  the  latter  approached  the  privateer  and 
was  fired  upon.  Tne  next  day  one  of  the  vessels  of  the  squad- 
ron took  up  position  near  the  General  Armstrong  to  attack  her. 
The  crew,  not  finding  themselves  able  to  resist,  abandoned  and 
destroyed  her.  The  United  States  alleged  that  the  Portuguese 
governor  had  failed  in  his  duty  as  a neutral,  and  demanded  a 
large  compensation  for  the  owners  of  the  privateer.  After  much 

'De  Lapradelle  et  Politis:  Recueil  des  Arbitrages  Internationaux,  Vol. 
I,  pp.  580-597. 


236 


THE  HAGUE  PEACE  CONFERENCES 


correspondence  the  affair  was  submitted  in  1851  to  the  arbitra- 
tion of  the  President  of  the  French  Republic,  who  held  that  as 
Captain  Reid,  of  the  privateer,  had  not  applied  at  the  beginning 
to  the  neutral,  but  had  used  force  to  repel  an  improper  aggres- 
sion, of  which  he  stated  himself  to  be  the  object,  he  had  himself 
disregarded  the  neutrality  of  the  territory  in  which  he  was, 
and  had  consequently  released  its  sovereign  from  all  obligations 
to  protect  him  otherwise  than  by  his  good  offices;  that  from  that 
moment  the  Portuguese  government  could  not  be  responsible 
for  the  results  of  a collision  which  had  taken  place  in  contempt 
of  its  sovereign  rights.^ 

As  this  is  an  American  case,  I have  preferred  to  cite  it  from 
an  English  work  of  authority.  For  a like  reason,  I quote  the 
criticism  of  a competent  foreigner,  M.  Kleen,  who  declares  the 
decision  to  be  as  wrong  in  its  premises  as  in  its  conclusions; 
that  if  the  reasoning  of  this  award  were  approved  in  theory 
and  consecrated  in  practice,  it  would  be  sufficient  for  a bel- 
ligerent wishing  to  attack  the  enemy  in  neutral  waters,  to 
incite  him,  by  a suspicious  approach,  to  any  act  of  legitimate 
defense,  in  order  to  make  the  neutrality  of  the  port  a vain 
word,  and  that  the  case  of  the  General  Armstrong  should  be 
considered  not  as  a model  to  follow,  but  as  a precedent  to  be 
disregarded. 

Mr.  Kleen’s  criticism  seems  well  founded,  and  the  conclu- 
sion he  draws  regarding  the  choice  of  sovereigns  as  arbiters 
is  peculiarly  pleasing  to  republican  ears: 

The  Chief  of  a State,  familiar  with  large  horizons  of  general 
policy,  is  not  the  one  to  investigate  minutely  a special,  narrow 
and  subtle  question  of  law.  The  criticism  which  the  sentence  of 
1852  deserves,  applies  less  to  the  arbiter  than  to  the  tradition, 
so  long  current,  by  virtue  of  which  sovereigns  were,  in  the  first 
half  of  the  ninteenth  century,  chosen  to  judge  controversies,  for 
which  they  lacked  the  necessary  competence.  ^ 

The  mixed  commission  of  1853  is  only  less  important  than 
the  arbitration  under  the  seventh  article  of  Jay’s  Treaty.  The 


‘ W.  E.  Hall,  International  Law,  5th  ed.,  pp.  624-625. 

^ De  Lapradelle  et  Politis:  Recueil  des  Arbitrages  Intemationaux,  Vol. 
I,  pp.  650-660.  See  also,  Moore,  Int.  Arb.,  II,  1071-1132.  Elaborate 
references  are  given  in  Darby,  p.  781. 


INTERNATIONAL  ARBITRATION 


237 


preamble  of  the  claims  convention  of  1853  states  it  as  the 
opinion  of  the  United  States  and  Great  Britain  that  “ a speedy 
and  equitable  settlement”  of  the  various  outstanding  claims 
arising  since  the  Treaty  of  Ghent  “ will  contribute  much  to  the 
maintenance  of  the  friendly  feelings  which  subsist  between  the 
two  countries.  ” And  for  this  purpose  the  countries  in  ques- 
tion established  a commission  to  consist  of  two  commissioners, 
of  whom  one  should  be  appointed  by  each.  A third  person 
was  to  be  chosen  to  act  as  arbitrator  or  umpire  in  case  of  dis- 
agreement, and  should  the  commissioners  be  unable  to  agree 
upon  the  name  of  a third  person,  then  each  commissioner  was 
to  name  a person 

and  in  each  and  every  case  in  which  the  commissioners  may 
differ  in  opinion  as  to  the  decision  which  they  ought  to  give,  it 
shall  be  determined  by  lot  which  of  the  two  persons  so  named 
shall  be  the  Arbitrator  or  Umpire  in  that  particular  case. 
(Article  I.) 

The  commissioners  were  fortunately  able  to  agree  upon  Mr- 
Joshua  Bates  as  umpire,  an  American  by  birth  but  a resident 
of  England,  who  happily  possessed  the  confidence  of  both 
Great  Britain  and  the  United  States,  and  whose  judgments, 
while  less  authoritative  than  those  of  Pinkney  and  Gore  of 
Jay’s  commission,  are  entitled  to  great  respect.  In  speaking 
of  the  commission,  Professor  Moore  says: 

For  the  peculiarly  satisfactory  results  of  the  board’s  labors, 
credit  was  perhaps  chiefly  due  to  the  Umpire — who  exhibited 
in  his  decisions  the  same  broad  intelligence  and  sound  judgment 
as  had  characterized  his  exceptionally  successful  career  in  busi- 
ness.* 

“No  case  of  Arbitration,”  according  to  a writer  in  the 
North  American  Review,  “has  ever  been  more  successful  than 
this.  Damages  were  awarded  in  some  thirty  claims  and 
many  important  decisions  were  pronounced  by  this  Com- 
mission.” 


‘ John  Bassett  Moore,  American  Diplomacy,  p.  209. 


238 


THE  HAGUE  PEACE  CONFERENCES 


Mr.  Seward  remarked  that  it  “had  the  prestige  of  complete 
and  even  felicitous  success. 

The  claims  presented  to  the  commission  extended  over  many 
years  and  were  varied  in  nature,  and  a number  of  important 
questions  of  international  law  were  considered  and  decided  by 
the  commission.  The  most  famous  case  was  the  Creole  which 
at  one  time  threatened  to  involve  Great  Britain  and  the  United 
States  in  war.  The  facts  are  sufficiently  stated  in  the  brief 
head-note  to  the  decision,  as  follows : 

The  Creole  sailed  from  Hampton  Roads,  in  Virginia,  for 
New  Orleans,  with  slaves  on  board.  The  slaves  on  the  passage 
rose  on  the  officers  and  crew,  severely  wounded  the  captain, 
the  chief  mate,  and  two  of  the  crew,  and  murdered  one  of  the 
passengers. 

The  mate  was  then  compelled  to  navigate  the  vessel  to  the 
Bahamas.  On  her  arrival  she  was  taken  possession  of  by 
the  American  consul,  authority  was  restored,  and  measures 
were  taken  to  send  the  vessel  to  the  United  States,  in  order 
that  those  slaves  charged  with  mutiny  and  murder  on  the  high 
seas  might  be  tried.  The  British  authorities  interfered  and 
liberated  the  slaves.  ^ 

In  a much  criticised  opinion,  from  which  the  following  extract 
is  made,  Mr.  Bates  said; 

The  Creole  was  on  a voyage,  sanctioned  and  protected  by  the 
laws  of  the  United  States,  and  by  the  law  of  nations.  Her 
right  to  navigate  the  ocean  could  not  be  questioned,  and  as 
growing  out  of  that  right,  the  right  to  seek  shelter  or  enter  the 
ports  of  a friendly  power  in  case  of  distress  or  any  unavoidable 
necessity. 

A vessel  navigating  the  ocean  carries  with  her  the  laws  of  her 
own  country,  so  far  as  relates  to  the  persons  and  property  on 
board,  and  to  a certain  extent  retains  those  rights  even  in  the 
ports  of  the  foreign  nations  she  may  visit.  Now,  this  being  the 
state  of  the  law  of  nations,  what  were  the  duties  of  the  authori- 
ties at  Nassau  in  regard  to  the  Creole?  It  is  submitted  the 
mutineers  could  not  be  tried  by  the  courts  of  that  island,  the 
crime  having  been  committed  on  the  high  seas.  All  that  the 

‘ See  Darby,  International  Tribunals,  p.  782,  No.  35. 

’ Report  of  the  Commission  for  the  Settlement  of  Claims  between  the 
United  States  and  Great  Britain,  pp.  241-245. 


INTERNATIONAL  ARBITRATION 


239 


authorities  could  lawfully  do  was  to  comply  with  the  request 
of  the  American  consul,  and  keep  the  mutineers  in  custody  until 
a conveyance  could  be  found  for  sending  them  to  the  United 
States. 

The  other  slaves,  being  perfectly  quiet,  and  under  the  com- 
mand of  the  captain  and  owners,  and  on  board  an  American 
ship,  the  authorities  should  have  seen  that  they  were  protected 
by  the  law  of  nations;  their  rights  under  which  cannot  be  abro- 
gated or  varied,  either  by  the  emanicpation  act  or  any  other 
act  of  the  British  Parliament. 

Blackstone,  4th  volume,  speaking  of  the  law  of  nations, 
states : “ Whenever  any  question  arises,  which  is  properly  the 
subject  of  its  jurisdiction,  such  law  is  here  adopted  in  its  full 
extent  by  the  common  law.” 

The  municipal  law  of  England  cannot  authorize  a magis- 
trate to  violate  the  law  of  nations  by  invading  with  an  armed 
force  the  vessel  of  a friendly  nation  that  has  committed  no 
offense,  and  forcibly  dissolving  the  relations  which  by  the  laws 
of  his  country  the  captain  is  bound  to  preserve  and  enforce  on 
board.  ‘ 

The  case  of  the  Forte  arose  from  the  arrest  and  alleged  ille- 
gal imprisonment  of  three  British  officers  from  the  ship  La 
Forte,  at  Rio  de  Janeiro,  in  1862.  The  British  naval  officers 
were  without  the  insignia  of  their  rank,  and  Leopold,  King  of 
the  Belgians,  to  whom  the  matter  was  referred,  decided  that 

in  the  mode  in  which  the  law  of  Brazil  had  been  applied  toward 
the  English  officers,  there  was  neither  premeditation  of  offense 
nor  offense  to  the  British  navy. 

' Moore,  Int.  Arb.,  Vol.  IV,  pp.  4377-4378. 

Mr.  Bates’  opinion  in  the  cases  of  the  Enterprise,  Commission  for  the 
Settlement  of  Claims  between  the  United  States  and  Great  Britain,  pp. 
187  and  following,  and  the  Hermosa,  ibid.,  p.  238,  likewise  involving  the 
question  of  slavery,  have  a rare  hiunan  interest.  The  case  of  the  Florida, 
ibid.,  p.  246,  and  Texas  Bonds,  ibid.,  p.  382  (Holford’s  case),  the  cases 
of  the  John,  ibid.,  p.  427,  involving  the  capture  of  enemy  property  after 
a treaty  of  peace,  and  the  Washington,  holding  the  Bay  of  Fundy  to  be 
an  open  arm  of  the  sea,  ibid.,  p.  170,  are  well  reasoned  authorities,  and 
McLeod’s  Case,  ibid.,  p.  314,  involving  the  assumption  of  the  Government 
of  the  criminal  act  of  its  agent,  is  well  known  in  international  law. 

For  the  work  of  the  commission  as  a whole,  see  Moore’s  International 
Arbitrations,  Vol.  I,  pp.  391-407;  Vol.  IV,  pp.  4342,  et  seq.  For  the 
proceedings  before  the  commission  and  a criticism  of  its  results,  see  De 
Lapradelle  et  Politis:  RecueU  des  Arbitrages  Internationaux,  Vol.  I,  pp. 
661-762,  especially  pp.  705-732. 


240 


THE  HAGUE  PEACE  CONFERENCES 


This  case  is  important  because  nations,  as  their  honor  is 
supposed  to  be  peculiarly  involved,  resent  indignity  to  their 
military  or  naval  representatives.^ 

As  war  is  the  result  of  conflict,  so  is  it  the  cause  of  conflict 
and  no  uncertain  source  of  arbitration  either  for  the  questions 
leading  to  war  and  unsettled  by  it,  or  for  the  questions  to 
which  it  has  given  rise.  The  extension  of  international  trade 
and  commerce  generates  difference  of  opinion,  and  the  con- 
flict of  interests  between  the  native  and  the  foreigner,  in  the 
desire  of  the  one  to  maintain  and  the  other  to  gain  a market, 
often  leads  to  discrimination  either  sanctioned  by  law  or  by 
a strained  and  artificial  interpretation  of  existing  law  or 
treaties.  Real  or  imagined  discrimination  results  and  the 
foreign  office  is  burdened  with  the  claims  of  subjects  or  citi- 
zens. When  the  necessity  cannot  be  resisted  to  settle  the  con- 
troversies incident  to  war,  the  contracting  parties  are  pressed 
by  the  claimants  to  include  their  grievances  in  the  proposed 
treaty  of  arbitration,  so  that  treaties  at  the  end  of  war  not 
only  include  the  controversies  arising  from  it,  but  are  in  the 
nature  of  a clearing  house  for  international  claims.  The  Civil 
War  was  no  exception  to  this  general  rule,  and  the  treaty  of 
Washington,  of  May  8,  1871,  between  Great  Britain  and  the 
United  States,  sought  to  include  all  outstanding  difficulties 
in  any  way  connected  with  the  war  and  to  determine  finally 
other  matters  in  dispute  between  the  contracting  parties. 
Irrespective  of  the  magnitude  of  the  questions  submitted  to 
arbitration.  Professor  Moore  declares  that 

the  right  of  this  treaty  to  be  regarded  as  the  greatest  treaty 
of  arbitration  the  world  has  yet  seen,  was  only  emphasized  by 
the  fact  that  it  provided  for  four  distinct  arbitrations,  the  largest 
number  ever  established  under  a single  convention.^ 

The  four  questions  for  which  arbitration  was  provided  were 

* La  Fontaine,  No.  47.  For  elaborate  references  to  this  case,  see  Darby’s 
International  Tribunals,  p.  788. 

^ John  Bassett  Moore,  The  United  States  and  International  Arbitration, 
pp.  11-12,  in  the  edition  of  the  pamphlet  published  by  the  American  Peace 
Society  in  1906. 


INTERNATIONAL  ARBITRATION 


241 


the  Alabama  claims/  the  claims  of  British  subjects  and  Amer- 
ican citizens  arising  from  alleged  illegal  acts  of  the  contracting 
parties  during  the  Civil  War/  the  compensation,  if  any,  to  be 
paid  by  the  United  States  for  the  fishing  privileges  granted  by 
Article  18  of  the  treaty,®  the  determination  of  the  boundary 
line  between  the  United  States  and  the  British  possessions 
west  of  the  Rocky  Mountains  under  the  first  Article  of  the 
Treaty  of  June  15,  1846.^ 

The  Geneva  Award,  in  the  so-called  Alabama  claims,  is  with- 
out question  the  most  famous  and  most  important  case  in  the 
annals  of  international  arbitration,  and  has  done  more  than 
all  other  cases  to  advance  the  judicial  and  therefore  peaceful 
settlement  of  international  controversies.®  It  is  frequently 
said  that  only  cases  of  secondary  interest  are  arbitrated  which 
could  not  by  any  possibility  cause  war.  The  Geneva  Award 
is  a direct  and  conclusive  refutation.  It  is  also  stated  that 
questions  involving  “honor,”  whatever  this  indefinite  phrase 
may  mean,  cannot  be  submitted  to  arbitration,  but  the 
honor  of  Great  Britain  and  the  United  States  were  assuredly 
involved. 

In  simplest  terms,  the  question  submitted  to  arbitration  by 
the  treaty  of  Washington  of  May  8,  1871,  between  Great  Brit- 
ain and  the  United  States,  was,  whether  the  acts  of  the  Con- 
federate cruisers  of  British  origin,  and  the  use  of  British 
ports  as  bases  of  operation  taxed  Great  Britain  with  such  a 
violation  of  neutral  duty  to  the  United  States  during  the  Civil 
War  as  to  render  Great  Britain  liable  in  damages. 

For  the  guidance  of  the  tribunal  of  arbitration,  the  treaty 
(Article  VI),  determined  the  law  to  be  applied — ^the  so-called 
three  rules  of  the  Treaty  of  Washington — and  the  tribunal. 


* Treaty  of  Washington,  May  8,  1871,  between  Great  Britain  and  the 
United  States,  Articles  I-XI. 

’ Ibid.,  XII-XVII. 

’ Ibid.,  Articles  XVIII-XXV. 

^ Ibid.,  Articles  XXXIV-XLII. 

® See  Moore’s  International  Arbitrations,  Vol.  I,  pp.  495-682.  Numer- 
ous references  are  given  in  Darby’s  International  Tribunals,  pp.  795-796. 


242 


THE  HAGUE  PEACE  CONFERENCES 


composed  of  representatives  of  the  United  States,  Great  Bri- 
tain, Italy,  Switzerland  and  Brazil,  examining  the  facts  of  each 
case  in  the  light  of  the  rules  and  such  principles  of  international 
law  not  inconsistent  therewith,  awarded  the  United  States 
the  sum  of  $15,500,000. 

In  view  of  all  the  circumstances  of  the  case.  Professor  Moore 
is  guilty  of  no  exaggeration  when  he  declares  that  the  Geneva 
Arbitration  offers 

the  noblest  spectacle  of  modern  times,  in  which  two  great  and 
powerful  nations,  gaining  in  wisdom  and  self-control  and  losing 
nothing  in  patriotism  or  self-respect,  taught  the  world  that  the 
magnitude  of  a controversy  need  not  be  a bar  to  its  peaceful  solu- 
tion.* 

If  the  origin  of  modem  arbitration  is  to  be  found  in  Jay’s 
Treaty  of  1794,  the  Treaty  of  Washington  of  1871  and  the 
Geneva  Award  of  1872  mark  at  one  and  the  same  time  its 
triumph  and  justification. 

The  second  arbitration  under  the  treaty  dealt  with  all 
claims  other  than  the  Alabama  claims  “on  the  part  of  corpora- 
tions, companies,  or  private  individuals,  citizens  of  the  United 
States,  upon  the  Government  of  Her  Britannic  Majesty”  and  all 
corresponding  claims  of  British  subjects  against  the  Govern- 
ment of  the  United  States  arising  out  of  acts  committed 
against  the  persons  or  property  of  their  respective  citizens 
and  subjects  during  the  period  between  April  13, 1861  and  April 
9,  1865,  inclusive.  For  the  settlement  of  these  claims  three 
commissioners  were  to  be  appointed  in  the  following  manner; 
one  by  the  President  of  the  United  States,  one  by  Her  Britan- 
nic Majesty,  and  a third  by  the  contracting  parties  conjointly 
and,  in  case  of  failure  to  agree,  the  third  commissioner  was  to 
be  named  by  the  Spanish  representative  at  Washington.  The 
commissioners  thus  appointed  were  to  make  and  subscribe 
before  proceeding  to  any  business,  “a  solemn  declaration 
that  they  will  impartially  and  carefully  examine  and  decide, 

* The  United  States  and  International  Arbitration,  p.  12  (edition  of  the 
pamphlet  published  by  the  American  Peace  Society). 


INTERNATIONAL  ARBITRATION 


243 


to  the  best  of  their  judgment,  and  according  to  justice  and 
equity,”  all  claims  presented  by  the  contracting  parties. ‘ 

As  may  well  be  imagined  from  the  jurisdiction  of  the  com- 
mission, many  and  important  claims  were  presented  to  the 
commission  even  although  they  had  been  passed  upon  by  the 
Supreme  Court  of  the  United  States,  and  the  report  of  the  pro- 
ceedings of  the  commission  is  correspondingly  valuable.  The 
commission  may  be  taken  as  the  final  type  of  the  reconciliation 
between  the  mixed  commission  on  the  one  hand  and  arbitra- 
tion on  the  other,  for  while  the  contracting  parties  were  rep- 
resented in  the  commission,  the  umpire  was  selected  by  a 
stranger  to  the  controversy.^ 

The  third  arbitration  under  the  treaty  to  determine  the  com- 
pensation to  be  paid  by  the  United  States  for  the  fishing  privi- 
leges granted  by  Article  18,  was  to  be  by  a mixed  commission 
of  three,  selected  as  in  the  previous  instance  with  the  exception 
that  the  Austrian  representative  at  London  was  to  name  the 
umpire.*  However  unsatisfactory  the  composition  of  the  com- 
mission, or  however  galling  its  decisions  may  have  been  to  the 
United  States,  the  award  was  properly,  if  neither  promptly  nor 
graciously,  paid.^ 

The  fourth  and  last  question  specified  in  the  treaty  for  arbi- 
tration, namely  the  ascertainment  of  the  exact  boundary  line 
between  Washington  and  British  Columbia,  was  referred  to 
the  Emperor  of  Germany,®  who  accepted  the  trust  and  decided 
in  favor  of  the  United  States.® 

It  should  be  said  that  within  the  same  decade  the  United 
States  negotiated  treaties  with  Mexico  (July  4,  1868),  and 

* Treaty  of  Washington,  May  8,  1871,  between  Great  Britain  and  the 
United  States,  Article  XII. 

* For  proceedings  of  the  Commission,  see  Moore’s  International  Arbitra- 
tions, Vol.  I,  pp.  683-702;  Vol.  Ill,  pp.  2201-2211;  Vol.  IV,  pp.  3902- 
3958. 

’ Treaty  of  Washington,  May  8,  1871,  between  Great  Britain  and  the 
United  States,  Articles  XXII  and  XXIII. 

* Moore’s  International  Arbitrations,  Vol.  I,  pp.  703-753. 

’ Ibid.,  Article  XXXIV. 

* Moore’s  International  Arbitrations,  Vol.  I,  pp.  196-236. 


244 


THE  HAGUE  PEACE  CONFERENCES 


France  (January  15,  1880,)  for  the  settlement  of  outstanding 
difficulties  arising  from  injuries  to  the  persons  or  property  of 
Mexican  and  American  citizens,  and  the  claims  of  French  and 
American  citizens  “growing  out  of  acts  committed  by  the 
civil  or  military  authorities  of  either  country  within  certain 
defined  limits.  The  Mexican  convention  is  noteworthy  not 
merely  for  the  number  of  claims  presented  and  rejected,  but 
for  the  provision  concerning  the  umpire.  The  commissioners 
were  to  name  some  third  person 

to  act  as  an  umpire  in  any  case  or  cases  on  which  they  may 
themselves  differ  in  opinion.  If  they  should  not  be  able  to  agree 
upon  the  name  of  such  third  person,  they  shall  each  name  one 
person,  and  in  each  and  every  case  in  which  the  commissioners 
may  differ  in  opinion  as  to  the  decision  which  they  ought  to 
give,  it  shall  be  determined  by  lot  which  of  the  two  persons  so 
named  shall  be  umpire  in  that  particular  case.^ 

Professor  Francis  Lieber  of  Columbia  College,  and  upon  his 
death  Sir  Edward  Thornton,  British  Minister  to  the  United 
States,  were  named.  It  is  unnecessary  to  state  that  this 
method  of  appointing  an  umpire  is  opposed  to  principle  and 
is  neither  sound  in  theory  nor  in  practice. 

The  Franco-American  mixed  commission  was  composed  of 
representatives  of  each  of  the  contracting  parties  and  a third 
commissioner  appointed  by  the  Emperor  of  Brazil.® 

Passing  over  numerous  arbitrations  which  have  become  more 
frequent  with  each  decade — they  could  not  be  more  impor- 
tant than  the  arbitrations  under  the  Washington  treaty — the 
convention  of  February  29,  1892,  relating  to  fur-seals  in  Ber- 
ing Sea,  manifests  anew  the  devotion  of  the  English  speaking 
race  to  the  principle  of  arbitration.  And  the  arbitration, 
important  in  itself,  was  enhanced  by  the  powers  conferred 

'■  Claims  Convention,  January  15,  1880,  between  France  and  the  United 
States,  preamble. 

^ Claims  Convention,  July  4,  1868,  between  Mexico  and  the  United 
States,  Article  I. 

’Claims  Convention,  January  15,  1880,  between  France  and  the  United 
States,  Article  I.  For  proceedings  of  the  Commissfon,  see  Moore’s  Inter- 
national Arbitrations,  Vol.  II.,  pp.  1133-1184. 


INTERNATIONAL  ARBITRATION 


245 


upon  the  tribunal  to  issue  regulations  for  the  protection  of  seal 
fishing  in  waters  found  to  be  beyond  the  jurisdiction  of  the 
respective  governments.^  In  the  institution  of  the  tribunal 
of  arbitration  a long  step  was  taken  towards  securing  impar- 
tiality by  admitting  representatives  appointed  by  three  dis- 
interested nations. 

Two  shall  be  named  by  the  President  of  the  United  States; 
two  shall  be  named  by  Her  Britannic  Majesty;  His  Excellency 
the  President  of  the  French  Republic  shall  be  j ointly  requested  by 
the  High  Contracting  Parties  to  name  one;  His  Majesty  the  Bang 
of  Italy  shall  be  so  requested  to  name  one;  and  His  Majesty  the 
Bang  of  Sweden  and  Norway  shall  be  so  requested  to  name  one. 
The  seven  Arbitrators  to  be  so  named  shall  be  jurists  of  distin- 
guished reputation  in  their  respective  countries;  and  the  selected 
Powers  shall  be  requested  to  choose,  if  possible,  jurists  who  are 
acquainted  with  the  English  language. 

Of  the  five  points  submitted  to  the  tribunal,  the  most 
important  in  point  of  law  was: 

Has  the  United  States  any  right,  and  if  so,  what  right  to  protec- 
tion or  property  in  the  fur-seals  frequenting  the  islands  in 
Behring  Sea  when  such  seals  are  found  outside  the  ordinary 
three-mile  limit?* 

If  the  United  States  succeeded,  as  it  did,  to  Russian  rights 
in  Alaska  and  Alaskan  waters  by  purchase  in  1867,  still  if 
the  jurisdiction  of  the  United  States  was  limited  to  Alaska 
and  the  ordinary  three-mile  limit  beyond  low  water  mark,  it 
necessarily  followed  that  regulations  issued  by  the  United 
States  assuming  jurisdiction  beyond  that  limit  could  only 
bind  American  citizens,  but  could  not  in  anywise,  without  the 
consent  of  Great  Britain,  affect  its  subjects.  The  claim  of  the 
United  States  to  jurisdiction  beyond  the  three-mile  limit,  how- 
ever unselfish  it  may  have  been  and  meant  solely  for  the  pro- 
tection of  seal  fishing,  was  clearly  contrary  to  international 


‘ Convention  Relating  to  Fur-Seals  in  Behring  Sea,  February  29,  1892, 
between  Great  Britain  and  the  United  States,  Article  VII. 

’ Ibid.,  Article  VI. 


246 


THE  HAGUE  PEACE  CONFERENCES 


law,  and  the  decision  of  the  tribunal  on  this  question,  however 
disagreeable  it  may  have  been  to  the  United  States,  was  merely 
declaratory  of  the  existing  law  of  nations,  that  no  nation  in 
the  absence  of  an  international  agreement  can  extend  its  juris- 
diction beyond  the  three-mile  limit  in  such  a way  as  to  affect 
citizens  or  subjects  of  foreign  countries.^ 

It  is  thus  seen  that  the  policy  of  the  United  States  has  been 
from  the  foundation  of  the  Republic  favorable  to  international 
arbitration;  that  it  has  arbitrated  questions  involving  dis- 
puted territory;  that  it  has  submitted  to  the  determination  of 
mixed  commissions  questions  involving  the  legality  of  acts  of 
its  Government  in  times  of  peace  as  well  as  in  war;  that  it  has 
repeatedly  referred  to  arbitration  claims  of  its  citizens  against 
foreign  countries,  and  that  it  has  submitted,  not  merely  the 
judgments  of  its  courts  but  the  propriety  of  jurisdiction  exer- 
cised in  virtue  of  legislative  enactments  to  the  decision  of 
neutral  sovereigns  as  arbitrators  and  commissions  of  arbitra- 
tion in  which  the  United  States  was  represented.  Not  only 
has  the  United  States  arbitrated  its  own  difl&culties,  but  it  has 
offered  its  good  offices  and  mediation  to  foreign  countries  to 
secure  arbitration,  and  in  one  celebrated  instance  went  to  the 
verge  of  propriety  in  insisting  that  a nation,  not  the  meanest 
in  reputation  andptwer, — I refer  to  Great  Britain, — should 
arbitrate  its  boundary  dispute  with  Venezuela.^  The  parent 
listened  to  the  mutterings  of  the  child,  and  the  dispute  was 
arbitrated  at  Paris  during  the  session  of  the  First  Hague  Con- 
ference, which  has  set  the  seal  of  international  approval  upon 
arbitration  as 

the  most  efficacious  and  at  the  same  time,  the  most  equitable 
method  of  deciding  controversies  which  have  not  been  settled 
by  diplomatic  methods. 

A recent  and  well-informed  writer  on  international  arbitra- 

* For  the  Fur-Seal  Arbitration,  see  Moore’s  International  Arbitrations, 
Vol.  I,  pp.  755-961. 

’ Darby’s  International  Tribunals,  p.  828,  No.  189. 


INTEKNATIONAL  ARBITRATION 


247 


tion'  has  analyzed  the  arbitrations  of  the  past  century  and 
groups  them  as  follows: 

1.  Those  dealing  with  differences  arising  between  States 
in  their  sovereign  capacities: 

a Boundary  disputes  on  land; 

h Fisheries. 

2.  Those  dealing  with  matters  in  which  one  State  makes  a 
claim  really  on  behalf  of  its  subjects,  but  ostensibly  in  its 
sovereign  capacity,  against  another  State,  on  account  of  cer- 
tain wrongful  acts  or  omissions: 

a Breaches  of  neutrality; 

b Unlawful  seizures; 

c Violation  of  rights  of  person  of  foreign  subjects.^ 

The  brief  survey  of  arbitration,  principally  chosen  from 
American  cases,  contains  illustrations  under  each  heading  of 
this  classification,  and  thus  outlines  not  merely  some  of  the 
arbitrations  to  which  the  United  States  has  been  a party,  but 
also  indicates  the  variety  and  extent  of  arbitration.® 

In  considering  the  progress  and  development  of  arbitration 
since  Jay’s  Treaty  of  1794,  the  question  naturally  arises,  is 


’ Phillipson,  Two  Studies  in  International  Law,  p.  43. 

’ This  classification  is  a modified  form  of  that  suggested  by  M.  Kama- 
rowski  in  his  Tribunal  International,  of  which  a French  translation  ap- 
peared in  1887. 

Dr.  Bulmerincq  (in  Holtzendorff’s  Handbuch,  IV,  45,  et  seq.)  thus  clas- 
sifies the  arbitration  cases  that  have  occurred:  1.  Ueber  staatliches  Eigen- 
thum.  2.  Ueber  Staatsgrenzen.  3.  Ueber  Ausubung  der  Amtsgewalt 
staatlicher  Autoritaten  gegen  Angehorige  anderer  Staaten.  4.  Ueber 
Todtung  der  Angehorigen  andered  Staaten.  5.  Ueber  Beschlagnahme 
fremder  Giiter  imd  Schiffe.  6.  Ueber  Verletzung  und  Nichtbeachtung 
der  Pflichten  der  Neutralitat.  7.  Ueber  Folgen  einer  nicht  notificirten 
Blokade.  8.  Ueber  Interpretation  eines  internationalen  Vertrages.  9. 
Ueber  Rechtsverhaltnisse  zwischen  einer  halbsouveranen  Macht  und  einer 
Compagnie. 

^For  an  analysis  of  the  subjects  submitted  to  arbitration  in  the  nine- 
teenth century  and  an  enumeration  of  the  countries  taking  part  in  the 
proceedings,  see  Rivier’s  Droit  des  Gens,  Vol.  II,  pp.  168-170. 


248 


THE  HAGUE  PEACE  CONFEKENCES 


there  in  the  nature  of  things  a limitation  to  the  usefulness  of 
arbitration  and  the  questions  which  may  properly  be  intrusted 
to  arbitration?  On  this  point  I beg  to  invoke  the  authority 
of  Professor  Moore,  so  naturally  and  so  constantly  quoted  on 
this  subject. 

When  we  consider  the  future  of  international  arbitration, 
whether  in  America  or  elsewhere,  we  are  at  once  confronted 
with  the  question  as  to  its  limitations.  Is  it  possible  to  fix  any 
precise  bounds,  beyond  which  this  mode  of  settling  international 
disputes  may  be  said  to  be  impracticable?  If  we  consult  the 
history  of  arbitrations  during  the  past  hundred  years,  we  are 
obliged  to  answer  that  no  such  lines  can  be  definitely  drawn; 
but  this  is  far  from  affirming  that  the  use  of  force  in  the  conduct 
of  international  affairs  will  soon  be  abolished.  It  signifies 
merely  that  phrases  such  as  “national  honor”  and  “national 
self-defense,”  which  have  been  employed  in  describing  supposed 
exceptions  to  the  principles  of  arbitration,  convey  no  definitive 
meaning.  Questions  of  honor  and  of  self-defense  are,  in  inter- 
national as  in  private  relations,  matters  partly  of  circumstance 
and  partly  of  opinion.  When  the  United  States,  in  1863,  first 
proposed  that  the  differences  that  had  arisen  with  Great  Britain, 
as  to  the  fitting  out  of  the  Alabama  and  other  Confederate 
cruisers,  should  be  submitted  to  arbitration,  Earl  RusseU 
rejected  the  overture  on  the  ground  that  the  questions  in  con- 
troversy involved  the  honor  of  Her  Majesty’s  Government,  of 
which  that  government  was  declared  to  be  “the  sole  guardian.” 
Eight  years  later  there  was  concluded  at  Washington  the  treaty 
under  which  the  differences  between  the  two  governments  were 
submitted  to  the  judgment  of  the  tribunal  that  met  at  Geneva. 
This  remarkable  example  serves  to  illustrate  the  fact  that  the 
scope  and  progress  of  arbitration  will  depend,  not  so  much  upon 
special  devices,  or  upon  general  declarations  or  descriptive 
exceptions,  as  upon  the  dispositions  of  nations,  dispositions 
which,  although  they  are  subject  to  the  modifying  influence  of 
public  opinion,  spring  primarily  from  the  national  feelings,  the 
national  interests,  and  the  national  ambitions.  ‘ 

The  problem,  therefore,  is  how  to  extend  the  scope  of  arbi- 
tration and  to  make  it  a regular  and  efficient  means  of  settling 
peaceably  disputes  between  nations  which  diplomacy  has 
failed  to  settle.  We  are  so  accustomed  to  the  settlement  of 
private  disputes  in  a court  of  justice  that  we  forget  that  a time 
existed  when  each  person  determined  his  right  by  a resort  to 

‘ John  Bassett  Moore,  American  Diplomacy,  pp.  221-222. 


INTERNATIONAL  ARBITRATION 


249 


force,  and  that  the  law  court  on  the  one  hand  and  private 
arbitration  on  the  other,  only  became  established  when  the 
judicial  settlement  of  private  controversies  created  an  irresist- 
ible public  opinion  on  their  behalf.  The  judiciary  is  a triumph 
of  reason  over  force  and  of  education  over  prejudice,  and  we 
can  only  hope  to  win  nations  to  the  principle  of  arbitration  by 
the  creation  of  an  enlightened  international  opinion  so  strong 
and  convincing  as  to  force  nations  to  resort  to  arbitration. 
Peace  societies  of  the  United  States  and  of  Europe,  interna- 
tional congresses  of  the  friends  of  peace,  the  declarations  and 
projects  of  scientific  societies  such  as  the  Institute  of  Inter- 
national Law  and  the  Association  for  the  Codification  of  Inter- 
national Law,  the  Interparliamentary  Union,  the  teaching  of 
the  pulpit  and  the  instruction  in  our  schools  and  colleges,  and 
the  invariable  success  of  arbitration  in  the  past  century  have 
created  a public  opinion  which  bids  fair  to  carry  everything 
before  it.  But  in  international  life,  the  nation  is  the  unit  and 
the  pressure  must  be  brought  upon  the  governments  by  public 
opinion,  so  that  they  may  adopt  arbitration  for  the  settlement 
of  disputes  which  diplomacy  is  either  powerless  to  settle  or 
which  it  has  failed  to  adjust.  It  is  natural,  therefore,  that  the 
United  States,  in  which  public  opinion  not  merely  creates  but 
dominates  the  Government,  should  have  adopted  arbitration 
as  a cardinal  principle  of  its  foreign  policy  and  that  we  should 
seek  to  extend  the  movement  generated  in  our  midst  beyond 
our  boundaries  and  to  obtain  the  cooperation  of  Europe.  The 
establishment  of  the  Republic  of  the  United  States,  the  spirit 
of  nationality  generated  by  the  French  Revolution,  the 
advantage  of  constitutional  government  over  a despotism, 
and  the  desire  of  the  European  countries  to  establish  consti- 
tutional forms  of  government  in  which  the  will  of  the  people 
may  be  decisive,  have  rendered  it  comparatively  easy  for  pub- 
lic opinion  to  find  official  expression.  Europe,  therefore,  has 
taken  up  the  cause  of  arbitration,  and  it  is  to  be  hoped  that  the 
sentiment  in  its  favor,  supported  by  a public  opinion  at  home 
and  imposed  by  international  public  opinion,  will  hencefor- 
ward be  the  handmaid  of  justice  and  peace.. 


250 


THE  HAGUE  PEACE  CONPEKENCES 


Without  attempting  to  trace  the  movement  to  its  origin  or 
to  treat  the  subject  in  detail,  certain  phases  of  the  progress  are 
too  important  to  be  overlooked.  It  is  not  enough  that  nations 
accept  the  principle  of  arbitration  in  the  abstract,  or  that  they 
arbitrate  carefully  selected  cases  of  minor  importance.  It 
is  essential  that  they  bind  themselves  by  international  agree- 
ment to  arbitrate  either  outstanding  difficulties  or  preferably 
that  they  agree  in  advance  to  arbitrate,  generally  or  specifi- 
cally, future  controversies  as  they  arise.  It  is  a matter  of 
satisfaction  that  the  United  States  has  been  a pioneer  in  the 
movement  toward  arbitration,  and  it  is  peculiarly  appropriate 
that  William  Jay,  the  worthy  son  of  the  Father  of  Modern 
Arbitration,  pointed  out  the  method  which  nations  have 
accepted  and  made  their  own.  For  example,  in  a little  work 
published  in  England  and  in  the  United  States  in  1842  and 
which  has  had  great  influence  at  home  and  abroad,  Mr.  Jay 
proposed  that  an  arbitration  clause,  with  which  we  are  for- 
tunately so  familiar,  should  be  introduced  in  future  treaties. 
As  the  matter  is  so  important,  I quote  the  following  passages 
from  his  pamphlet : War  and  Peace : The  Evils  of  the  First 
and  a Plan  for  Preserving  the  Last: 

Of  all  the  nations  with  whom  we  have  relations,  none,  per- 
haps, enjoys  in  an  equal  degree  our  good-will  as  our  first  and 
ancient  ally.  Between  us  and  France  no  rivalry  exists  in  com- 
merce and  manufactures;  and  we  perceive  at  present  no  pros- 
pect of  an  interruption  of  that  harmony  which  has  so  long 
marked  the  intercourse  of  the  two  nations. 

Suppose  in  our  next  treaty  with  France  an  article  were 
inserted  of  the  following  import:  “It  is  agreed  between  the 
contracting  parties  that  if,  unhappily,  any  controversy  shall 
hereafter  arise  between  them  in  respect  to  the  true  meaning  and 
intention  of  any  stipulation  in  this  present  treaty,  or  in  respect 
to  any  other  subject,  which  controversy  cannot  be  satisfactorily 
adjusted  by  negotiation,  neither  party  shall  resort  to  hostilities 
against  the  other;  but  the  matter  in  dispute,  shall,  by  a special 
convention,  be  submitted  to  the  arbitrament  of  one  or  more 
friendly  powers ; and  the  parties  hereby  agree  to  abide  by  the 
award  which  may  be  given  in  pursuance  of  such  submission.”* 


War  and  Peace,  (English  Edition),  p.  40, 


INTERNATIONAL  ARBITRATION 


251 


And  it  seems  little  more  than  poetic  justice  that  our  first 
modern  treaty  containing  the  arbitration  clause,  ratified  by 
the  Senate  and  proclaimed  by  the  President,  should  have  been 
concluded  with  “our  first  and  ancient  ally,”  France. ‘ Jay’s 
recommenation  did  not  fall  upon  deaf  ears,  and,  while 
it  cannot  be  said  that  he  created  public  opinion  in  behalf  of 
arbitration,  it  is  not  too  much  to  assert  that  he  gave  it  a posi- 
tive concrete  direction.  Within  six  years  after  the  publica- 
tion of  his  little  book,  the  United  States  inserted  in  its  treaty 
with  Mexico  the  following  clause: 

If  unhappily  any  disagreement  should  hereafter  arise  between 
the  Governments  of  the  two  Republics,  whether  with  respect 
to  the  interpretation  of  any  stipulation  in  this  treaty,  or 
with  respect  to  any  other  particular  concerning  the  poliUcal 
or  commercial  relations  of  the  two  nations,  the  said  Govern- 
ments, in  the  name  of  those  nations,  do  promise  to  each  other 
that  they  will  endeavor,  in  the  most  sincere  and  earnest  manner, 
to  settle  the  differences  so  arising,  and  to  preserve  the  state  of 
peace  and  friendship  in  which  the  two  countries  are  now  placing 
themselves,  using,  for  this  end,  mutual  representations  and  paci- 
fic negotiations.  And  if,  by  these  means,  they  should  not  be 
enabled  to  come  to  an  agreement,  a resort  shall  not,  on  this 
account,  be  had  to  reprisals,  aggression,  or  hostility  of  any  kind, 
by  the  one  republic  against  the  other,  until  the  Government  of 
that  which  deems  itself  aggrieved  shall  have  maturely  considered, 
in  the  spirit  of  peace  and  good  neighborship,  whether  it  would 
not  be  better  that  such  difference  should  be  settled  by  the  arbi- 
tration of  commissioners  appointed  on  each  side,  or  by  that  of  a 
friendly  nation.  And  should  such  course  be  proposed  by  either 
party,  it  shall  be  acceded  to  by  the  other,  unless  deemed  by  it 
altogether  incompatible  with  the  nature  of  the  difference,  or 
the  circumstances  of  the  case.  (Article  XXI.) 

The  Peace  Society  of  England  made  the  proposal  its  own 
and  in  1849,  Richard  Cobden  made  the  following  motion  in  the 
British  House  of  Commons : 

That  a humble  address  be  presented  to  Her  Majesty,  pray- 
ing that  she  will  be  graciously  pleased  to  direct  her  principal 
Secretary  of  State  for  Foreign  Affairs  to  enter  into  communica- 
tion with  Foreign  Powers,  inviting  them  to  concur  in  treaties, 

* Arbitration  convention  between  the  United  States  and  France,  con- 
cluded February  10,  1908. 


252 


THE  HAGUE  PEACE  CONFERENCES 


binding  the  respective  parties,  in  the  event  of  any  future  mis- 
understanding, which  cannot  be  arranged  by  amicable  negotia- 
tion,to  refer  the  matter  in  dispute  to  the  decision  of  arbitrators.' 

Defeated  at  the  time,  Cobden’s  successor,  Mr.  Henry  Richard, 
was  able  to  secure  the  adoption  of  the  following  motion  by 
the  House  of  Commons  in  1873 : 

Resolved  that  an  humble  Address  be  presented  to  Her 
Majesty,  praying  that  She  will  be  graciously  pleased  to  instruct 
Her  Principal  Secretary  of  State  for  Foreign  Affairs  to  enter  into 
communication  with  Foreign  Powers  with  a view  to  further 
improvement  in  International  Law  and  the  establishment  of  a 
general  and  permanent  system  of  International  Arbitration.* 

Encouraged  by  this  initial  success,  the  distinguished  Italian 
publicist  and  statesman  Mancini  introduced  the  following 
motion,  which  was  adopted  unanimously  by  the  Chamber  of 
Deputies: 

The  chamber  expresses  a wish  that  the  Government  of  the 
King  in  its  foreign  relations  endeavor  to  make  arbitration  an 
accepted  and  frequent  means  of  settling  in  accordance  with 
justice  international  disputes  in  matters  susceptible  of  arbitra- 
tion; that  it  propose,  whenever  the  opportunity  offers,  to  in- 
troduce into  the  treaties  a clause  stating  that  difficulties  over 
the  interpretation  and  enforcement  of  said  treaties  shall  be 
referred  to  arbitrators;  and  that  it  persevere  in  the  excellent 
initiative  taken  by  it  for  some  years  towards  the  conclusion  of 
conventions  between  Italy  and  the  other  Powers  with  a view  to 
making  the  essential  rules  of  private  international  law  uniform 
and  obligatory  in  the  interest  of  the  respective  peoples.* 

Other  nations  followed  the  good  example  set  by  the  United 
States,  Great  Britain  and  Italy,  so  that  year  by  year  the  world 
is  being  surrounded  by  a network  of  international  treaties  for 
the  arbitration  of  international  controversies.  The  triumph 
of  arbitration  is  assured.  But  to  be  a permanent  means  of 
settling  international  disputes,  arbitration  must  be  effica- 
cious. Is  it  efficacious?  To  this  question.  Professor  Moore 
responds : 

* Cobden’s  Speeches,  edited  by  Bright  and  Rogers,  Vol.  II,  pp.  384-398. 

* Hansard’s  Parliamentary  Debates,  1873,  Vol.  CCXVII,  pp.  52-87. 

^ Revue  de  droit  international  et  de  legislation  comparee,  1874,  Vol.  VI, 
DD.  172-173. 


INTERNATIONAL  ARBITRATION 


253 


The  best  answer  we  can  make  to  that  inquiry  is  to  ask  the 
objector  to  point  to  a single  instance  in  which  two  nations, 
after  having  agreed  to  arbitrate  a difference,  have  gone  to  war 
about  it.  Arbitration  has  brought  peace,  and  “peace  with 
honor.”  It  is  a rude  and  savage  notion  that  nations,  when 
they  feel  themselves  aggrieved,  must,  instead  of  discussing  and 
reasoning  about  their  differences  in  a spirit  of  patience  and 
forbearance,  seek  to  avenge  their  wrongs  by  summary  and 
violent  measures.  Among  an  enlightened  and  Christian  people 
the  spirit  of  revenge,  discarded,  as  it  is,  in  laws  for  the  govern- 
ment of  men  in  their  private  relations,  can  still  less  be  adopted 
as  a principle  of  public  conduct.  For,  just  in  proportion  as 
the  responsibilities  of  nations  are  greater  and  more  solemn 
than  those  of  private  individuals,  in  that  proportion  are  nations 
bound  to  exceed  the  measure  of  private  virtue  in  their  efforts 
to  hasten  the  era  of  peace.^ 

In  laying  the  corner-stone  of  the  building  for  the  Interna- 
tional Union  of  American  Republics,  Mr.  Root,  speaking  as 
Secretary  of  State,  said; 

There  are  no  international  controversies  so  serious  that  they 
can  not  be  settled  peaceably  if  both  parties  really  desire  peace- 
able settlement,  while  there  are  few  causes  of  dispute  so  trifling 
that  they  cannot  be  made  the  occasion  of  war  if  either  party 
really  desires  war.  The  matters  in  dispute  between  nations  ar 
nothing;  the  spirit  which  deals  with  them  is  everything.* 

’ The  United  States  and  International  Arbitration,  Annual  Report  of  the 
American  Historical  Association  (1891),  pp.  65,  85. 

* American  Journal  of  International  Law,  (1908)  Vol.  II,  p.  624. 


CHAPTER  VI 


THE  CONVENTION  FOR  THE  PACIFIC  SETTLEMENT 
OF  INTERNATIONAL  DISPUTES  OF  1899 
AND  ITS  REVISION  IN  1907 

There  are  various  ways  in  which  the  results  of  the  two  Hague 
Conferences  may  be  described:  First,  the  historical  method, 
giving  the  origin  of  each  proposition  and  the  steps  by  which 
it  became  incorporated  into  the  conventions  as  finally  adopted; 
second,  by  means  of  a commentary  upon  the  conventions,  arti- 
cle by  article,  in  order  that  the  nature  of  each  may  be  con- 
sidered, its  scope  determined  and  its  meaning  ascertained; 
third,  by  a survey  of  the  convention  as  a whole  and  by  its 
separation  into  its  constituent  parts  the  underlying  pur- 
pose may  be  discovered  and  expounded  in  general  rather 
than  in  detail,  and  by  analysis  of  important  provisions  a 
philosophical  survey  be  presented.  The  third  method,  analyt- 
ical and  philosophical  in  its  nature  rather  than  historical  and 
detailed,  is  the  one  adopted  for  the  presentation  of  the  positive 
results  of  the  conferences,  with  an  occasional  reference  to  the 
projects  as  originally  presented,  so  that  the  historical  setting 
may  be  supplied  when  it  seems  necessary  to  a correct  under- 
standing of  the  subject. 

The  Convention  for  the  Peaceful  Settlement  of  International 
Disputes  was,  as  has  already  been  said,  the  great  and  crown- 
ing glory  of  the  First  Conference.  Its  revision  by  the  Second 
Conference  in  the  light  of  practical  experience  and  theoretical 
discussion  has  made  the  original  project  more  worthy  of  the 
commendation  lavished  upon  it.  The  spirit  of  the  Conven- 
tion of  1899  remains  intact;  various  details  suggested  by  prac- 
tice have  been  incorporated;  the  procedure  of  the  First  Con- 
ference has  been  elaborated  carefully  and  conscientiously  by 
the  Second  Conference,  in  order  to  render  the  provisions  of 
the  Convention  more  adequate  and  therefore  more  far-reach- 


254 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES  255 


ing.  An  examination  of  the  Convention  of  1899  shows  that  it 
consisted  of  four  titles,  devoted  respectively  to:  The  Mainte- 
nance of  General  Peace,  Good  Offices  and  Mediation,  Interna- 
tional Commissions  of  Inquiry;  International  Arbitration. 
The  latter  title  is  divided  into  three  chapters,  concerning 
arbitration  in  general;  the  Permanent  Court  of  Arbitration, 
for  the  settlement  of  questions  susceptible  of  judicial  treat- 
ment, and  arbitral  procedure  for  the  presentation  and  con- 
duct of  a case  in  the  Court  of  Arbitration  established  in 
accordance  with  the  provisions  of  the  Convention. 

It  will  be  recalled  that  Article  8 of  the  second  Russian  Cir- 
cular stated  that 

the  subjects  to  be  submitted  for  international  discussion  at  the 
Conference  could  in  general  terms  be  summarized  as  follows: 
to  accept  in  principle  the  employment  of  good  offices,  of  media- 
tion and  facultative  arbitration  in  cases  lending  themselves 
thereto,  with  the  object  of  preventing  armed  conflicts  between 
nations;  to  come  to  an  understanding  with  respect  to  the  mode 
of  applying  these  good  offices,  and  to  establish  a uniform  practice 
in  using  them. 

An  analysis  of  the  Convention  of  1899  shows  that  each  rec  om 
mendationof  the  circular  was  incorporated  into  the  Convention 
and  that  appropriate  machinery  was  created  in  order  to  give 
form  and  effect  to  the  recommendations.  The  Conference 
went  beyond  the  letter  of  the  program  but  not  beyond  its 
spirit  in  creating  a permanent  court  in  which  arbitration, 
recognized  by  Article  8 of  the  program,  could  be  had  of  ques- 
tions susceptible  of  judicial  treatment  presented  to  it  for 
adjudication.  The  first  Russian  Circular  stated  the  purpose  in 
the  opening  sentence  to  be  the  maintenance  of  general  peace 

as  the  ideal  toward  which  the  endeavors  of  all  governments 
should  be  directed, 

and  the  concluding  paragraph  of  the  circular  expressed  the 
hope  that  the  Conference  would  confirm  the  agreements  reached 
by  the  delegates 

by  the  solemn  establishment  of  the  principles  of  justice  and 
right,  upon  which  repose  the  security  of  States  and  the  welfare 
of  peoples. 


256 


THE  HAGUE  PEACE  CONFERENCES 


The  preamble  of  the  Convention  of  1899  embodies  the  hopes 
and  aspirations  expressed  in  the  two  circulars  in  a form  which, 
when  stated,  requires  little  comment  and  no  addition.  It 
declares  the  Powers  to  be 

Animated  by  a strong  desire  to  concert  for  the  maintenance 
of  the  general  peace; 

Resolved  to  second  by  their  best  efforts  the  friendly  settle- 
ment of  international  disputes; 

Recognizing  the  solidarity  which  unites  the  members  of  the 
society  of  civilized  nations; 

Desirous  of  extending  the  empire  of  law,  and  of  strengthen- 
ing the  appreciation  of  international  justice; 

Convinced  that  the  permanent  institution  of  a Court  of 
Arbitration,  accessible  to  all,  in  the  midst  of  the  independent 
Powers,  will  contribute  effectively  to  this  result; 

Having  regard  to  the  advantages  attending  the  general  and 
regular  organization  of  arbitral  procedure; 

Sharing  the  opinion  of  the  august  Initiator  of  the  Interna- 
tional Peace  Conference  that  it  is  expedient  to  solemnly  estab- 
lish, by  an  international  Agreement,  the  principles  of  equity 
and  right  on  which  repose  the  security  of  States  and  the  welfare  of 
peoples. 

1.  Good  Offices  and  Mediation 

The  first  title  of  the  Convention  is  properly  headed  “ The 
Maintenance  of  General  Peace,”  thus  setting  forth  clearly  in  the 
first  article  the  idea  underlying  the  call  of  the  Conference;  for  the 
powers  agree  to  use  their  best  efforts  to  insure  the  pacific  settle- 
ment of  international  differences  with  a view  to  obviate,  as  far  as 
possible,  recourse  to  force  in  the  relations  between  States.  The 
preamble  and  the  first  title  may,  therefore,  be  taken  as  express- 
ing in  happy  and  terse  form  the  key-note  of  the  Convention, 
namely,  the  maintenance  of  general  peace,  and,  in  order  to 
maintain  this  general  peace,the  Signatory  Powers  agree  to  have 
recourse,  as  far  as  circumstances  will  allow,  to  the  good  offices 
or  mediation  of  one  or  more  friendly  Powers  (Article  2) ; that 
strangers  to  the  controversy  should,  on  their  own  initiative,  as 
far  as  circumstances  permit,  offer  their  good  offices  and  media- 
tion to  States  at  variance;  that  this  offer  may  be  made  even 
during  the  course  of  hostilities,  and  that  the  exercise  of  this 


PACIFIC  SETTLEMENT  OF  INTEKNATIONAL  DISPUTES  257 


right  shall  never  be  regarded  by  one  or  the  other  of  the  parties 
to  the  contest  as  an  unfriendly  act  (Article  3) ; that  the  role 
of  the  mediator  consists  in  reconciling  opposing  claims  and  in 
appeasing  feelings  of  resentment  (Article  4) ; that  the  functions 
of  the  mediator  are  at  an  end  when  either  of  the  parties  to  the 
dispute,  or  indeed  the  mediating  power,  declares  that  the 
methods  of  conciliation  are  not  accepted  (Article  5) ; that  good 
offices  and  mediation  have  exclusively  the  character  of  advice 
(Article  6) ; that  the  acceptance  of  mediation  before  war  can 
not,  in  the  absence  of  agreement  to  the  contrary,  have  the  effect 
of  interrupting,  delaying  or  hindering  mobilization  or  other 
methods  of  preparation  for  war,  and  that,  if  mediation  occurs 
after  the  commencement  of  hostilities,  it  causes  no  interrup- 
tion to  the  military  operations  in  progress  unless  there  be  an 
agreement  to  the  contrary  (Article  7).  It  thus  appears  from 
the  exact  language  of  the  convention  that  the  offer  of  good 
offices  and  mediation  results  from  agreement  of  the  parties  in 
controversy;  that  it  is  a friendly  act  undertaken  solely  in  the 
interest  of  preserving  peace  or  of  bringing  about  peace  if  war 
actually  exists;  that  it  has  no  effect  either  upon  the  prepara- 
tion for  or  conduct  of  war;  that  it  has  no  more  influence  than 
a word  of  advice  from  friend  to  friend ; and  that,  if  disagreeable 
or  unacceptable  to  the  power,  the  offer  shall  be  withdrawn. 

Powers  are  not  more  prone  than  individuals  in  controversy 
to  listen  to  friendly  advice,  and  they  are  accustomed  to  resent 
intermeddling.  Between  nation  and  nation  the  fear  that 
the  exercise  of  good  offices  and  mediation  may  become  a 
precedent  and  insensibly  pass  into  a claim  of  intervention 
inconsistent  with  independence  and  its  corrollary,  equality, 
has  doubtless  prevented  an  offer  on  more  than  one  occasion, 
and  the  consequences  of  the  “Holy  Alliance”  were  not  such  as 
to  incline  nations  to  sanction  by  international  agreement  the 
exercise  of  a right  which  might  interfere  with  the  full  and 
untrammeled  exercise  of  sovereignty.*  If,  however,  the 

* See  Nys;  Le  Concert  Europ6en  et  la  notion  du  Droit  International  in 
his  fitudes  de  Droit  International  et  de  Droit  Politique,  2d  series,  pp.  1-46. 


258 


THE  HAGUE  PEACE  CONFERENCES 


exercise  of  the  offer  of  good  offices  and  mediation  be  purely 
voluntary,  and  be  not  raised  to  the  rank  of  a duty  of  strangers 
to  decide  the  controversy,  and  if  the  effect  of  good  offices 
and  mediation  be  restricted  to  advice  which  may  be  accepted 
or  rejected  by  either  of  the  parties  to  the  conflict,  it  is  difficult 
to  see  how  the  offer,  although  it  may  be  embarrassing,  can 
prejudice  the  freedom  of  action  of  the  contending  parties. 

The  question  should,  however,  be  viewed  in  its  broader 
aspects,  because  the  outbreak  of  hostilities,  while  it  concerns 
primarily  belligerents,  is  not  without  interest  to  neutrals, 
which  find  themselves  affected  and  seriously  prejudiced  by  a 
state  of  warfare;  for  that  which  was  permitted  to  their  citizens 
or  subjects  in  time  of  peace  is  no  longer  allowed  in  time  of 
war. 

For  example,  trading  in  certain  commodities,  falling  within 
the  definition  of  contraband,  subjects  not  only  the  articles  but 
also  the  vessels  in  which  they  are  carried  to  capture  and  con- 
fiscation, and  trading  with  blockaded  ports  is  strictly  pro- 
hibited. The  neutral,  therefore,  is  not  a disinterested  specta- 
tor; he  feels  the  consequences  of  the  war,  although  the  full 
evil  does  not  affect  him,  and  in  seeking  to  avoid  war  and  its 
consequences  he  acts  not  merely  in  the  interest  of  the  bel- 
ligerents, but  as  a neutral  seeking  to  save  the  rights  of 
neutrals. 

The  interest  of  the  neutral  in  warfare  is  recognized  by  the 
third  convention  of  the  Second  Conference,  which  provides  that 
a neutral  should  not  be  taxed  with  notice  of  the  war  and  the 
performance  of  neutral  duties  until  it  has  received  notification 
of  the  existence  of  war.  If  war,  then,  has  the  effect  of  impos- 
ing duties  upon  the  neutral  which  do  not  exist  in  time  of  peace, 
it  follows  that  it  must  be  in  the  interest  of  enlightened  as  well 
as  selfish  neutrality  to  preserve  peace  in  order  to  avoid  neutral 
duties,  and  if  war  already  exists,  it  must  likewise  be  the 
neutral’s  interest  to  bring  about  a cessation  of  hostilities 
irksome  to  neutral  activity.  The  neutral  should  not  be 
taxed  as  a mere  meddler  because,  in  seeking  to  prevent  the  out- 
break of  war,  he  is  actuated  by  motives  of  self-interest  of  a 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES  259 


legitimate  nature,  as  well  as  a large  and  philanthropic  desire 
to  preserve  the  world  from  the  horrors  of  war. 

Suppose  that  a difference  of  opinion  exists  and  threatens  to 
become  acute  between  two  members  of  the  family  of  nations, 
what  steps  are  taken,  and  in  what  order,  to  remove  the  mis- 
understanding, to  adjust  the  difficulty  and  to  redress  the 
injury  if  one  really  exists?  Let  Professor  Moore  answer  the 
question: 

The  ordinary  mode  of  obtaining  international  redress  is  by 
diplomatic  negotiation.  There  is  nothing  that  so  much  conduces 
to  the  adjustment  of  differences  as  a full  and  frank  discussion  of 
them.  Usually,  negotiations  are  conducted  by  the  regular  offi- 
cial representatives  of  the  governments  concerned.  Where, 
however,  the  exigencies  or  magnitude  of  the  controversy  appear 
to  render  it  expedient,  special  or  additional  representatives, 
official  or  unofficial,  are  employed;  and,  where  the  occasion 
requires  it,  formal  international  conferences  are  held.  Of  such 
conferences  the  history  of  diplomacy  affords  many  examples. 

Where  negotiation  fails,  the  parties  may  try  the  good  offices 
or  mediation  of  a friendly  power,  or  may  resort  to  arbitration.  ‘ . 

With  negotiation,  as  such,  we  have  nothing  to  do,  for  the 
convention  under  examination  speaks  only  of  good  offices, 
mediation  and  arbitration.  The  convention  draws  no  dis- 
tinction between  “good  offices"  and  “mediation."  They  are 
considered  as  identical  expressions,  denoting,  it  may  be,  a 
greater  degree  of  intensity.  As  diplomacy  has  never  insisted 
upon  the  distinction,  and  considers  the  terms  as  synonymous, 
the  framers  of  the  Convention  of  1899  were  wise  to  accept  the 
terms  as  generally  used  and  understood  without  attempting 
a distinction  which  at  best  is  formal  rather  than  real.  It  may 
be  that  an  offer  of  good  offices  is  a word  of  advice  to  settle  a 
dispute  without  a resort  to  war,  and  that  the  term  “media- 
tion" properly  denotes  cooperation  in  the  actual  settlement  of 
the  controversy. 

The  essence  of  good  offices  consists  in  advice  to  parties  in  con- 
troversy to  settle  their  difficulties.  It  precedes  and  calls  into 
being  negotiation,  and  when  this  is  done  good  offices  as  such  are 

‘ Moore,  Int.  Law  Dig.,  Vol.  VII,  § 1064,  p.  2. 


260 


THE  HAGUE  PEACE  CONFERENCES 


exhausted.  Mediation  assumes  charge  of  the  negotiation 
between  the  parties,  and  by  impartial  and  friendly  counsel 
suggests,  but  does  not  impose,  a solution.  As  Sir  James 
Mackintosh  happily  says: 

A mediator  is  a common  friend,  who  counsels  both  parties 
with  a weight  proportioned  to  their  belief  in  his  integrity  and 
their  respect  for  his  power.  But  he  is  not  an  arbitrator,  to 
whose  decisions  they  submit  their  differences,  and  whose  award 
is  binding  on  them.* 

In  a word,  good  offices  begin  and  end  in  counsel ; mediation, 
if  successful,  suggests  a concrete  settlement;  arbitration  decides 
a controversy  according  to  principles  of  law.  Good  offices 
and  mediation  are  a diplomatic;  arbitration  a judicial,  pro- 
ceeding. 

The  difference  between  good  offices  and  mediation  is,  after 
all,  one  of  degree,  not  of  kind,  and  as  the  section  is  entitled 
“Good  Offices  and  Mediation,”  and  as  the  phrases  are  used  in 
conjunction,  no  ambiguity  can  arise  even  although  there  seems 
to  be  more  than  a shade  of  difference  between  the  two  terms. 
However  this  may  be,  the  terms  are  well  recognized  and  under- 
stood in  international  law,  and  the  Conference  in  adopting 
them  and  sanctioning  the  idea  underlying  them,  raised  “ good 
offices”  and  “mediation”  to  the  rank  of  an  international  right, 
and  therefore  a duty,  which,  existing  in  theory,  is  but  little 
known  in  international  practice. 

The  Congress  of  Paris  of  1856,  which  began  the  codification 
of  international  law  with  the  admirable  declaration  concerning 
maritime  warfare,  previously  quoted,  has  another  and  greater 
claim  upon  our  gratitude,  by  recommending  and  adopting  in 
conventional  form,  mediation  “before  having  recourse  to  the 
use  of  force.”  The  recommendation  of  the  Congress  of  Paris 
was  special  and  general ; special  in  that  the  contracting  Powers 
agreed  to  mediation  between  themselves  (Article  VIII),  and 
general  in  that  the  Congress  recommended  generally  a recourse 
to  good  offices  before  a resort  to  arms.  This  distinction  appears 

* Hansard’s  Parliamentary  Debates,  Vol.  XXX,  526,  April  11,  1815; 
Moore,  Int.  Law  Digest,  Vol.  VII,  § 1064,  p.  3. 


PACIFIC  SETTLEMENT  OF  INTEEN ATIONAL  DISPUTES  261 


clearly  in  the  wording  of  the  articles,  which,  in  view  of  the 
importance  of  the  subject,  should  be  given: 

If  there  should  arise  between  the  Sublime  Porte  and  one  or 
more  of  the  other  signing  Powers,  any  misunderstanding  which 
might  endanger  the  maintenance  of  their  relations,  the  Sublime 
Porte  and  each  of  such  Powers  before  having  recourse  to  the 
use  of  force,  shall  afford  the  other  Contracting  Parties  the  oppor- 
tunity of  preventing  such  an  extremity  by  means  of  their  m^ia- 
tion.  (Article  VIII.) 

The  twenty-third  protocol  of  the  treaty,  due  to  the  efforts 
of  Henry  Richard,  Joseph  Sturge  and  their  devoted  followers, 
is,  as  previously  stated,  more  general: 

The  Plenipotentiaries  do  not  hesitate  to  express,  in  the  name 
of  their  Governments,  the  wish  that  States  between  which  any 
serious  misunderstanding  may  arise,  should,  before  appealing 
to  arms,  have  recourse,  as  far  as  circumstances  might  allow,  to 
the  good  offices  of  a friendly  Power. 

The  Plenipotentiaries  hope  that  the  Governments  not  repre- 
sented at  the  Congress  will  unite  in  the  sentiment  which  has 
inspired  the  wish  recorded  in  the  present  Protocol.^ 

Article  XII  of  the  General  Act  of  the  Congo  Conference, 
signed  at  Berlin,  February  26,  1885,  recognized  and  enforced 
mediation  in  the  case  of  a serious  disagreement  between  parties 
to  the  General  Act  regarding  the  Congo  territory. 

These  Powers  pledge  themselves,  before  appealing  to  arms, 
to  have  recourse  to  the  mediation  of  one  or  more  friendly  Powers. 

The  doctrine  recognized  and  proclaimed  by  the  Congress  of 
Paris  was  thus  repeated  in  international  agreements  of  great 
importance.  But  it  will  be  noted  that  the  contracting  parties 
agree  to  resort  to  good  offices  or  mediation,  or  to  permit  the 
contracting  powers  to  offer  good  offices  or  mediation,  but  it  is 
not  made  the  duty  of  the  neutral  to  intervene.  The  great 
importance  of  the  present  convention  lies  in  the  fact  that  the 
contracting  powers  not  only  bind  themselves  to  resort  to  good 
offices  and  mediation,  but  that  they  recognize  the  usefulness, 

* For  the  French  text  and  further  instances,  see  M.  Descamps’  Relev6 
Gdn6ral  des  Clauses  de  Mediation  et  d’Arbitrage,  Conference  Internationale 
de  la  Paix,  1899,  part  I,  pp.  138-141. 


262 


THE  HAGUE  PEACE  CONFERENCES 


the  desirability  and  the  right  of  strangers  to  the  controversy 
to  proffer  good  offices  and  mediation  for  the  settlement  of 
serious  disagreement  or  conflict  between  the  contracting  par- 
ties. 

So  far,  good  offices  and  mediation  have  been  considered  as 
extended  to  states  in  controversy  on  the  initiative  of  strangers 
to  the  dispute.  The  First  Conference,  however,  on  the  initia- 
tive of  Mr.  Holls,  devised  a system  of  mediation  which  in- 
volves the  cooperation  of  powers  in  controversy.  For  example, 
the  States  at  variance  shall  each  choose  a power  to  which  they 
entrust  the  mission  of  entering  into  direct  communication  with 
the  power  chosen  on  the  other  side,  with  the  object  of  prevent- 
ing the  rupture  of  pacific  relations.  These  two  powers  are 
regarded  as  the  direct  representatives  of  the  States  in  contro- 
versy, just  as  seconds  in  a duel  represent  their  principals,  and 
are  entrusted  during  a period  of  thirty  days  with  the  delicate 
mission  of  settling  peaceably  the  difficulty  without  interfer- 
ence from  the  principals.  If,  however,  the  difficulty  can  not 
be  arranged  honorably,  and  war  breaks  out,  the  designated 
powers  remain  charged  with  the  joint  duty  of  taking  advan- 
tage of  every  opportunity  to  restore  peace.  (Article  8.)  In 
this  way,  by  happy  intuition,  machinery  is  created  of  a per- 
manent nature.  The  two  seconds,  to  pursue  the  analogy  of 
the  dueling  code,  enjoy  the  confidence  of  their  principals,  and 
by  virtue  of  the  appointment,  are  charged  with  a duty  to 
suggest  a termination  of  the  controversy  if  it  may  be  termi- 
nated without  dishonor  to  the  principals.  The  influence  and 
importance  of  this  provision  are  still  theoretical  and  prob- 
lematical, for  it  has  not  yet  been  applied.  If  prospective  or 
actual  belligerents  regard  the  good  offices  of  neutrals  as  meddle- 
some, parties  willing  to  settle  a difficulty  may,  by  seconds  or 
negotiators  of  their  own  choice,  enter  into  confidential  rela- 
tions which,  with  tact  and  great  prudence,  may  prevent  or 
terminate  war.‘ 

* On  returning  home  after  dinner,  I found  a cipher  despatch  from  the 
Secretary  of  State  informing  us  that  President  McKinley  thinks  that  our 
American  commission  ought  not  to  urge  any  proposal  for  “seconding 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES  263 


Mr.  Holls,  the  author  of  the  special  form  of  mediation,  does 
not  claim  that  the  idea  was  in  any  sense  original,  but  whether 
original  or  not,  it  was  due  to  his  initiative  and  energy  that  it 
was  presented  to  the  Conference,  and  found  its  appropriate 
place  in  Article  8 of  the  First  Convention.  In  his  work  on 
the  Peace  Conference,  Mr.  Holls  states  the  origin  and  nature 
of  the  article  in  the  following  manner: 

At  the  second  session  of  the  Comt4  d’Examen,  May  29,  the 
first  draft  of  this  Article  was  introduced  by  Mr.  Holls  of  the 
United  States,  as  a personal  proposition,  for  which  neither  his 
Government  nor  his  colleagues  were  in  any  manner  responsi- 
ble. No  claim,  whatever,  is  made  for  originality  of  the  idea, 
which  the  author  remembers  to  have  seen  made  as  a suggestion, 
years  ago,  in  a source  of  which  no  trace  whatever  has  been  left  in 
his  recollection.  More  recently  the  idea  was  formulated  with 
great  force  by  M.  de  Nelidoff,  the  Russian  Ambassador  to  Italy, 
as  follows: 

“The  first  consideration  is  not  to  insist  upon  the  parties  sub- 
mitting their  dispute  to  the  judgment  of  a tribunal — possibly 
impartial,  but  cold  and  indifferent,  and  moved  only  by  the  most 
general  considerations  regarding  the  interests  or  the  honor  of 
the  parties  themselves.  What  should  be  done  is  to  insist  that, 
before  beginning  hostilities,  the  contending  parties  should 
intrust  the  settlement  of  the  affair  to  representatives  in  whom 
they  can  have  absolute  confidence:  who  will  act  according  to 
instructions,  and  who  will  each  defend  the  honor  of  his  principal 
as  he  would  his  own.  Everything  should  then  be  left  to  these 
seconds.  They  should  first  decide  whether  the  quarrel  necessi- 
tates a duel, — then  they  should  see  whether  no  honorable  means 
could  be  found  to  avoid  an  encounter.  If  they  could  not  agree  on 
this  subject,  they  might  call  in  a third  party,  or  communicate 
their  suggestions  to  their  principals.  But  the  final  determina- 

powers;”  that  he  fears  lest  it  may  block  the  way  of  the  arbitration  propo- 
sals. This  shows  that  imperfect  reports  have  reached  the  President  and 
his  cabinet.  The  fact  is  that  the  proposal  of  “seconding  powers”  was 
warmly  welcomed  by  the  subcommittee  when  it  was  presented;  that  the 
members  very  generally  telegraphed  home  to  their  governments,  and  at 
once  received  orders  to  support  it;  that  it  was  passed  by  a unanimous  vote 
of  the  subcommittee;  and  that  its  strongest  advocates  were  the  men  who 
are  most  in  favor  of  an  arbitration  plan.  So  far  from  injuring  the  pros- 
pects of  arbitration,  it  has  increased  them;  it  is  very  generally  spoken  of 
as  a victory  for  our  delegation,  and  has  increased  respect  for  our  country, 
and  for  anything  we  may  hereafter  present. — Andrew  D.  White’s  Auto- 
biography, Vol.  II,  p.  285. 


264 


THE  HAGUE  PEACE  CONFERENCES 


tion  should  always  be  left  to  the  interested  parties.  If  in  the 
end  the  seconds  decided  that  there  was  nothing  to  do  but  to  have 
them  ‘fight  it  out/  they  would  do  so.  But  if  they  resorted  to 
arms  without  having  had  recourse  to  these  preventive  prelimi- 
naries, and  a catastrophe  resulted,  the  winner  should  be  treated, 
not  as  a duelist,  but  as  an  assassin.  This  should  also  be  the 
rule  in  the  case  of  an  international  war.” 

In  the  winter  after  the  appearance  of  the  second  circular 
of  Count  Mouravieff,  the  late  Lord  Russell  of  Killowen,  Lord 
Chief  Justice  of  Great  Britain,  strongly  recommended  the  same 
idea  in  a most  happy  after-dinner  speech.  It  had  been  discussed 
by  the  author  with  intimate  friends  in  America  just  previous  to 
his  departure  for  The  Hague,  and  its  introduction  had  the  cordial 
indorsement  of  Ambassador  White,  President  of  the  American 
Commission. 

Upon  its  introduction,  the  Article  was  revised,  as  far  as  its 
language  was  concerned,  by  M.  de  Martens  and  Chevalier 
Descamps,  and  it  was  printed,  distributed,  and  reported  to  the 
principal  European  Governments  immediately.  At  the  third 
session  of  the  Comt6  d’Examen  on  May  31,  it  was  unanimously 
adopted  in  principle,  and  thereafter  it  was  put  into  its  present 
final  form.‘ 

The  title  of  the  First  Convention  dealing  with  good  offices 
and  mediation  does  not  create  a legal  obligation  either  on  the 
part  of  the  States  to  offer  good  offices  and  mediation,  or  on 
the  part  of  the  States  in  controversy  to  accept  good  offices,  or 
finally,  on  the  part  of  such  States  to  request  strangers  to  the 
controversy  to  extend  their  good  offices  and  mediation.  The 
procedure  is  entirely  voluntary,  and  the  obligation,  if  any,  is 
moral.  States  are,  however,  not  to  be  considered  as  inter- 
meddling, if  they  endeavor,  honorably  and  honestly,  to  pre- 
vent a controversy  from  assuming  warlike  proportions,  nor 
are  they  to  be  taxed  as  meddlers  by  an  expression  of  their 
desire  to  terminate  an  existing  war  by  settling  the  controversy 
which  has  caused  a resort  to  arms.  The  articles,  however 
simple  and  ineffective  they  may  seem  to  be,  nevertheless  offer 
an  additional  means  of  preserving  or  bringing  about  peace ; for 
they  create  between  ordinary  diplomatic  negotiations  between 


* Holls’  Peace  Conference,  pp.  188-189.  In  pages  190,  et  seq.,  Mr.  Holls 
presses  the  analogy  between  warfare  and  dueling,  and  outlines  the  procedure 
under  his  article  as  well  as  its  practical  value. 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES  265 


the  parties  in  controversy  and  the  war  which  may  result  from 
unsuccessful  negotiations,  a procedure  by  means  of  which  the 
resort  to  arms  may  be  averted,  or  peace  restored  if  war  actually 
exists.  It  will  be  noted  that  the  nature  of  the  controversy 
in  which  good  offices  and  mediation  may  properly  be  offered,  is 
not  specified  by  the  Convention;  therefore  all  controversies, 
whether  they  be  political  or  judicial,  and  whether  they  involve 
a mere  question  of  fact,  or  whether  they  touch  the  independ- 
ence, vital  interests,  or  honor  of  the  contending  nations,  may 
be  the  subject  of  good  offices  and  mediation. 

The  termination  of  the  Russo-Japanese  War  in  1905,  due  to 
the  initiative  of  President  Roosevelt,  shows  the  beneficent 
effect  of  good  offices;  and  the  action  of  France  in  proposing  an 
international  commission  of  inquiry  for  the  settlement  of  the 
controversy  arising  out  of  the  Dogger  Bank  incident  of  1904, 
between  Great  Britain  and  Russia,  shows  the  pacific  possibil- 
ities of  mediation,  when  honestly  undertaken  and  directed 
solely  in  the  interest  of  the  contending  parties,  for  the  estab- 
lishment of  peace  and  the  prevention  of  war.^ 

2.  International  Commission  of  Enquiry 

A controversy,  however  acute,  may  rest  upon  a disputed 
fact  and  the  ascertainment  of  this  fact  would  in  such  a 
case  settle  the  dispute.  A nation  claims  of  right  to  exercise 
jurisdiction  over  a certain  region,  and  a neighboring  nation 
asserts  jurisdiction  over  the  land  in  question.  Each  claims 
exclusive  jurisdiction,  and  each  is  unwilling  to  yield  to  the 
other.  If  some  machinery  can  be  established  to  ascertain  the 
exact  boundary,  the  question  of  jurisdiction  is  settled,  because 
it  is  by  virtue  of  the  boundary  that  each  nation  claims  jurisdic- 
tion. The  ascertainment  of  the  fact  thus  decides  the  contro- 
versy. But  the  value  of  the  finding  must  depend  upon  the 
care  and  accuracy  with  which  it  is  made,  and  it  would,  there- 
fore, seem  that  a commission  charged  with  the  sifting  of  the  evi- 

* For  good  offices  and  mediation  to  which  the  United  States  has  been  a 
party,  see  Moore’s  Dig.  Int.  Law,  Vol.  VII,  § 1065-1068,  pp.  2-22. 


266 


THE  HAGUE  PEACE  CONFERENCES 


dence  and  the  establishment  of  the  fact  should  be  international. 
The  recourse  to  the  commission  may  well  be  voluntary,  because 
experience  shows  that  people  are  often  more  willing  to  resort 
to  a means  of  their  own  choosing  than  to  be  forced  to  adopt  a 
particular  means,  even  although  the  result  accomplished  be 
identical.  In  moments  of  excitement  we  are  apt  to  feel  the 
restraint  of  an  imposed  duty,  but  we  are  not  unwilling  to  resort 
to  a means  voluntarily,  if  by  so  doing  we  may  escape  grave 
consequences.  These  views  were  evidently  shared  by  the 
First  Peace  Conference,  and  the  commissions  of  inquiry  pro- 
vided for  by  Title  3 (Articles  9-14)  are  international,  and 
the  resort  to  them  is  within  the  sound  discretion  of  the  parties 
to  a controversy.  The  commission  of  inquiry  is  looked  upon 
as  a last  resort,  and  presupposes  inability  to  come  to  agree- 
ment by  diplomatic  methods.  By  abundance  of  caution, 
differences  involving  honor  and  vital  interests  would  seem  to 
be  excluded,  but  it  is  evident  that  independent  sovereign 
nations  may  submit,  if  they  so  desire,  differences  involving 
both  honor  and  vital  interests.  The  seeming  exception  is 
undoubtedly  due  to  the  fact  that  the  mere  existence  of  the 
commission  of  inquiry  shall  not  seem  to  require  a submission  of 
differences  involving  honor  and  vital  interests,  and  the  volun- 
tary character  of  the  institution  is  still  further  safeguarded 
by  the  agreement  to  submit  “as  far  as  circumstances  allow.” 
The  powers  in  controversy  are  the  judges  of  the  question 
whether  the  facts  involve  honor  or  vital  interests,  or  whether 
the  peculiar  circumstances  of  the  case  permit  a submission  of 
the  differences  in  question.  (Article  9.) 

In  the  next  place,  the  commission  of  inquiry  is  to  be  con- 
stituted by  special  agreement  of  the  parties,  and  the  agree- 
ment to  submit  shall  specify  the  facts  to  be  examined,  and  the 
extent  of  the  power  of  the  commissioners.  In  this  way,  not 
only  are  the  contending  parties  sole  judges  whether  the  diffi- 
culty should  be  submitted,  but  they  likewise  control  the  com- 
position of  the  tribunal  to  which  the  agreed  statement  of  the 
controversy  shall  be  submitted.  (Article  10.) 

It  follows  naturally  that  a submission  involves  the  duty  to 


PACIFIC  SETTLEMENT  OF  INTEKNATIONAL  DISPUTES  267 


supply  as  fully  as  possible  all  means  and  facilities  necessary  to 
enable  the  commission  to  arrive  at  a complete  knowledge  and 
a correct  understanding  of  the  facts  in  dispute.  (Article  12.) 

And,  finally,  the  facts  as  found  are  to  be  reported  by  the 
commission  to  the  parties  in  controversy  for  their  information 
and  for  such  use  as  they  may  care  to  make  of  the  facts  as  found 
by  the  commission.  (Articles  13  and  14.) 

It  is  thus  seen,  that  the  entire  proceeding  is  voluntary, 
for  the  nations  do  not  bind  themselves  to  submit  a ques- 
tion in  controversy  to  a tribunal.  The  constitution  of  the 
commission  depends  upon  the  agreement  of  the  parties.  It  is, 
therefore,  a voluntary  tribunal,  and  the  parties  to  the  contro- 
versy are  left  entire  liberty  to  give  effect  to  the  facts  as  found 
by  the  commission  or  tribunal  of  their  own  choice.  The 
differences  of  opinion  regarding  the  effect  of  the  fact  as  found 
upon  the  liability  of  either  party  are  in  no  ways  concerned; 
for  the  parties  may  arrange  the  difficulty  by  diplomatic  nego- 
tiations, or,  if  they  choose,  they  may  submit  the  question  of 
responsibility  to  arbitration.  Of  the  proceedings  to  be  taken, 
they  are  the  sole  competent  judges.  It  can  not  be  denied,  how- 
ever, that  the  mere  ascertainment  of  the  fact  goes  far  in  itself 
to  establish  responsibility,  and  a direct,  although  moral  pres- 
sure, is  thus  brought  upon  the  parties  to  settle  the  difficulty  in 
accordance  with  the  fact  found.  It  can  not  be  said  that  the 
creators  of  the  institution  worked  wholly  in  the  dark,  because 
they  created  a practical  institution  based  upon  actual  expe- 
rience; but  they  were  naturally  unable  to  predict  in  advance 
the  success  of  the  institution  created  by  them.  When,  there- 
fore, the  Russian  squadron  under  Admiral  Rojetsvensky,  on 
its  way  to  the  Pacific,  fired  into  an  English  fishing  fleet  off 
Dogger  Bank,  in  the  belief  that  it  was  composed  of  Japanese 
cruisers,  or  that  Japanese  vessels  lurked  among  it,  an  expectant 
world  looked  forward,  with  no  little  curiosity,  to  the  commis- 
sion of  inquiry,  charged  with  ascertaining  the  facts  of  the 
case.  The  award  of  the  tribunal,  which,  by  special  agreement 
of  Great  Britain  and  Russia,  was  invested  with  the  power  to 
ascertain  the  facts  and  fix  the  responsibility,  was,  therefore. 


268 


THE  HAGUE  PEACE  CONFERENCES 


no  common  event,  and  the  acceptance  of  the  award  and  the 
payment  of  damages  arising  from  the  responsibility  as  found, 
showed  that  the  First  Peace  Conference  had  created  a practi- 
cal and  efficient  means  of  ascertaining  facts  in  a heated  contro- 
versy, and  preventing  a resort  to  arms,  which,  in  the  inflamed 
state  of  public  feeling,  might  have  occurred.^  The  tribunal 
thus  justified  its  creation,  and  it  can  not  be  doubted  that  its 
existence  in  the  year  1898  would  have  brought  pressure  upon 
Spain  and  the  United  States  to  submit  the  question  of  the 
Maine  to  an  international  commission  of  inquiry,  in  order  that 
the  facts  be  established  by  means  of  an  impartial,  that  is  to 
say,  international,  and  conscientious  investigation.  It  can 
not  be  said  that  the  explosion  of  the  Maine  was  the  direct  or 
proximate  cause  of  the  war  with  Spain ; but  the  elimination  of 
the  incident  might  have  prompted  the  two  nations  to  adjust 
their  other  difficulties  without  an  appeal  to  the  sword. 

The  Commission  of  Inquiry  of  1899  provided  that  the  agree- 
ment between  the  parties  should  fix  the  procedure,  and  that 
the  procedure  to  be  observed,  if  not  provided  for  in  the  con- 
vention, should  be  fixed  by  the  commission.  (Article  10.) 
These  provisions  were  intended  to  leave  the  procedure  to  the 
determination  of  the  parties  in  controversy ; but  it  is  evident 
that,  if  parties  in  controversy  are  not  in  a frame  of  mind  to 
ascertain,  judicially  and  impartially,  disputed  facts,  it  would 
seem  to  follow  that  they  may  not  be  in  a condition  to  draw  up 
rules  of  procedure  to  elucidate  the  questions  in  controversy. 
The  great  advantage  of  a commission  of  inquiry  is  that  it 
ascertains,  as  speedily  as  possible,  facts  submitted  to  it,  in 
order  that  public  feeling  may  become  informed  of  the  true 
state  of  affairs.  To  perform  its  duty  quickly  and  success- 
fully, a code  of  procedure  should  be  known,  so  that  attor- 
neys and  counsel  of  the  parties  in  conflict,  as  well  as  the 
commissioners  themselves,  may  be  familiar  in  advance  with 
the  procedure  to  be  observed.  When  the  Commission  of 

' For  the  Protocol  of  submission  and  the  finding  of  the  International 
Commission  of  Inquiry,  see  American  Journal  of  International  Law  (1908), 
Vol.  II,  pp.  929-936. 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES  269 


Inquiry  sat  for  the  first  time,  it  was  necessary  to  elaborate  the 
procedure,  and  it  seemed  highly  desirable  to  the  Second  Con- 
ference that  the  future  commission  should  be  relieved  of  this 
unnecessary  duty  and  the  delay  involved.  Therefore,  based 
upon  the  experience  acquired  in  the  Commission  of  Inquiry 
which  ascertained  the  facts  of  the  Dogger  Bank  incident, 
Russia,  Great  Britain  and  France  presented  elaborate  proj- 
ects, which,  after  careful  consideration  and  examination, 
formed  the  basis  of  the  additions  of  the  Second  Conference  to 
the  provisions  of  the  Convention  of  1899. 

The  revised  convention  interferes  in  no  way  with  the  volun- 
tary character  of  the  inquiry,  and  states  as  before,  although 
in  amplified  terms,  that  the  inquiry  convention  defines  the 
facts  to  be  examined,  determines  the  mode  and  time  in  which 
the  commission  is  to  be  formed,  and  the  extent  of  the  powers  of 
the  commissioners,  the  place  where  the  commission  shall  sit, 
whether  it  may  remove  to  another  place,  the  language  or 
languages  to  be  used,  as  well  as  the  date  on  which  each  party 
must  deposit  its  statement  of  facts,  and,  generally  spealdng, 
all  the  conditions  upon  which  the  parties  have  agreed.  But, 
while  the  Convention  of  1899  provided  that  the  procedure 
should  be  specified  in  the  agreement  for  submission  or  framed 
by  the  commission  itself,  if  the  agreement  fails  to  establish  the 
procedure,  the  revised  Convention  of  1907  elaborates  a code 
in  order  to  facilitate  the  constitution  and  working  of  com- 
missions of  inquiry,  which  shall  be  applicable  to  the  inquiry 
procedure,  in  so  far  as  the  parties  do  not  adopt  other  rules. 
That  is  to  say,  the  parties  in  litigation  are  authorized  to  deter- 
mine in  advance  all  the  details ; but  if  they  do  not  avail  them- 
selves of  this  privilege,  then  the  rules  of  procedure  devised  by 
the  Conference  shall  be  applicable  in  so  far  as  the  parties  do  not 
adopt  other  rules.  (Article  17.)  The  commission  necessarily 
settles  the  details  of  procedure  not  covered  by  the  special  in- 
quiry convention  or  the  revised  convention  for  the  peaceful 
settlement  of  international  disputes,  and  in  addition  arranges 
the  formalities  required  for  dealing  with  the  evidence.  As  the 


270 


THE  HAGUE  PEACE  CONFERENCES 


revised  convention  referred  to  contains  elaborate  procedure^ 
it  follows  that  the  general  procedure  to  be  followed  is  settled  and 
known  in  advance.  The  inquiry  requires  that  both  sides  shall 
be  heard ; that  each  party  communicates  to  the  other  the  state- 
ment of  facts,  together  with  the  instruments,  papers  and  docu- 
ments considered  useful  for  ascertaining  the  truth,  as  well 
as  the  names  of  witnesses  and  experts  whose  evidence  it 
wishes  to  present;  that  the  commission  is  entitled  to  change  its 
place  of  meeting,  which,  if  not  specified  in  the  inquiry  conven- 
tion, shall  be  The  Hague;  that  the  place  of  meeting,  once 
fixed,  can  not  be  altered  by  the  commission  except  with  the 
consent  of  the  parties;  that,  if  the  commission  desires  to  sit  in 
a third  state,  the  consent  of  such  state  shall  be  necessary ; that 
the  commission  shall  determine  what  languages  are  to  be  em- 
ployed, if  the  inquiry  convention  shall  have  failed  to  specify 
this  important  matter;  that  the  investigation  and  every  exami- 
nation of  locality  shall  be  made  in  the  presence  of  agent  and 
counsel,  or,  in  their  absence,  if  duly  summoned  they  fail  to 
appear,  and  that  the  commission  is  entitled  to  ask  from 
each  party  explanations  and  information  deemed  necessary. 
The  parties,  on  the  other  hand,  undertake  to  supply  the  com- 
mission of  inquiry,  as  fully  as  they  may  think  possible,  with 
all  means  and  facilities  necessary  to  enable  it  to  become 
acquainted  with  and  accurately  to  understand  the  facts 
in  dispute ; that  they  likewise  undertake  to  make  use  of  the 
means  at  their  disposal  under  their  municipal  law  to  insure  the 
appearance  of  witnesses  or  experts  within  their  territory  who 
have  been  summoned  before  the  commission,  and  if  such  wit- 
nesses or  experts  are  unable  to  attend,  to  arrange  for  their 
depositions  before  qualified  officials  of  their  own  country 
(Article  23);  that  for  service  of  notices,  as  well  as  evidence, 
the  commission  shall  apply  directly  to  the  third  power  or  to 
the  power  in  whose  territory  the  commission  sits,  and  that 
the  power  so  applied  to  shall  execute  the  request  as  far  as  its 
municipal  law  will  allow,  and  may  not  refuse  unless  the 
questions  are  calculated  to  impair  its  sovereign  rights  or  safety. 

* Articles  18-36,  51  et  seq. 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES  271 


The  witnesses  and  experts  are  summoned  at  the  request  of 
the  parties  or  by  the  commission  on  its  own  motion,  but  in 
every  case  only  through  the  government  and  by  the  govern- 
ment of  the  state  in  whose  territory  they  are.  (Article  25.) 
As  the  testimony  given  by  witnesses  and  experts  is  of  funda- 
mental importance  in  the  ascertainment  of  the  facts  in  dispute 
the  convention  has  set  forth  clearly  the  rules  and  regulations 
concerning  their  examination:  for  example,  the  examination 
of  the  witness  is  conducted  by  the  President,  although  mem- 
bers of  the  commission  may  put  questions  to  the  witness  which 
are  likely  to  throw  light  upon  and  complete  his  evidence.  Agent 
and  counsel  of  the  parties  may  not  interrupt  the  witness  when 
making  his  statement  nor  put  a question  to  him.  They  are 
not,  however,  deprived  of  the  right  to  intervene,  but  ques- 
tions they  may  desire  to  put  to  the  witness  are  asked  by 
the  president.  It  will  be  seen  that  the  method  of  cross-exami- 
nation so  familiar  to  English  and  American  lawyers  is  ex- 
cluded, because  this  method  of  investigation  is  practically 
unknown  in  civil  law  countries.  It  was  deemed  advisable  to 
adopt  the  method  familiar  to  most  of  the  countries  represented 
at  the  Conference  and  likely  to  make  use  of  the  convention. 
It  can  not  be  said  that  any  injustice  or  inconvenience  is 
likely  to  occur  by  means  of  this  provision ; for  the  commission 
is  appointed  to  ascertain  the  facts  in  the  controversy,  and  is  as 
desirous  as  the  agents  of  the  parties  to  elucidate  the  truth. 
The  questions  put  by  the  president  and  commission  are  likely 
to  be  searching,  and  the  method  adopted  has  the  advantage 
of  vesting  the  examination  of  witnesses  in  impartial,  although 
not  disinterested  hands.  As  this  procedure  is  well  known  in 
advance,  agents  and  counsel  may  well  conform  to  it,  and,  by 
submission  of  necessary  questions,  the  president  is  in  a position 
to  meet  their  desires  and  make  the  examination  as  searching, 
as  thorough  and  profound  as  the  interests  of  justice  require. 
(Article  26.) 

The  witness  deposes  orally  and  is  not  permitted  to  read  a 
written  draft.  He  may,  however,  by  permission  of  the  presi- 
dent, consult  notes  or  documents  necessary  to  refresh  his 


272 


THE  HAGUE  PEACE  CONFERENCES 


memory  and  assure  the  accuracy  of  his  testimony.  (Article 
27.) 

A minute  of  the  evidence  is  drawn  up  and  read  to  the  wit- 
ness, who  may  then  make  such  alterations  and  additions  as 
he  thinks  necessary,  and,  when  the  whole  statement  has  been 
read,  he  is  asked  to  sign  it.  (Article  28.)  In  this  way  the 
witness  is  allowed  to  testify  freely  and  fully,  without  inter- 
ruption by  counsel,  and  when  the  testimony  is  handed  him,  he 
is  able  to  correct  any  inaccuracies  which  may  have  slipped 
in. 

The  agents  are  authorized  in  the  course  of  inquiry  to  pre- 
sent in  writing  to  the  commission  and  to  the  third  party  such 
statements,  requisitions,  or  summaries  of  the  facts  as  they 
consider  useful  for  ascertaining  the  truth.  (Article  29.) 

The  proceedings  before  the  commission  are  thus  finished. 
The  commission  is  then  called  upon,  by  careful  examination 
and  weighing  of  the  testimony  submitted,  to  reach  a finding. 
This  is  done  in  private,  and  the  proceedings  are  secret.  All 
questions  are  decided  by  a majority  vote  of  the  members  of 
the  commission,  and  if  a member  declines  to  vote,  the  fact  is 
recorded  in  the  minutes.  The  sittings  of  the  commission  are 
not  public,  nor  are  the  minutes  and  documents  published  except 
by  virtue  of  the  permission  of  the  commission,  taken  with  the 
consent  of  the  parties.  (Article  31.) 

When  the  parties  have  presented  all  explanations  and  evi- 
dence, and  the  witnesses  heard,  the  president  declares  the 
inquiry  terminated,  and  the  commission  retires  to  deliberate 
and  draw  up  its  report  (Article  32),  which  is  signed  by  all  the 
members  of  the  commission.  If  a member  refuses  to  sign, 
this  fact  is  mentioned,  but  the  validity  of  the  report  is  not 
affected.  (Article  33.) 

The  report  of  the  commission  is  read  at  a public  sitting, 
the  agents  or  counsel  of  the  parties  being  present  or  duly 
summoned,  and  a copy  of  the  report  is  given  to  each  party. 
(Article  34.) 

Each  party  pays  its  own  expenses  and  an  equal  share  of  the 
expenses  incurred  by  the  commission.  (Article  36.) 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES  273 


It  is  thus  seen  that  the  institution  of  the  Commission  of 
Inquiry  depends  solely  upon  the  free  and  untrammeled  con- 
sent of  the  parties  in  controversy,  although  the  insertion 
of  the  phrase  “desirable”  in  Article  9 of  the  revised  conven- 
tion brings  a moral  pressure  to  bear  upon  the  parties  to  sub- 
mit their  controversy  to  a judicial  inquiry.  The  parties  are 
likewise  at  liberty  to  constitute  the  tribunal  as  they  please 
and  in  the  Inquiry  Convention  determine  the  proceeding  in 
detail  to  be  followed  before  the  commission;  but  a code  of 
procedure  is  recommended  which,  as  it  is  the  result  of  practical 
experience,  will  undoubtedly  commend  itself  to  the  Powers  at 
large.  The  parties  are  thus  not  only  at  liberty  to  resort  to 
the  commission  or  not  to  resort  to  it  as  they  desire,  but  they 
are  free  to  constitute  it  according  to  their  judgment  in  such  a 
way  as  to  meet  their  approbation.  If  they  have  not,  however, 
agreed  to  constitute  the  commission  in  a particular  way. 
Article  12  of  the  revised  convention  provides  that  the  Com- 
mission of  Inquiry  shall  be  formed  in  the  manner  determined 
in  Articles  45  and  57  of  the  Convention  for  the  Pacific  Set- 
tlement of  International  Disputes.  As  this  method  of  composi- 
tion is  the  same  as  that  for  the  constitution  of  the  Tribunal 
of  Arbitration,  it  seems  advisable  to  consider  it  in  connection 
with  the  permanent  tribunal. 

To  summarize  the  results  already  obtained,  it  is  therefore 
seen  that  the  offer  of  good  offices  and  mediation  is  voluntary, 
and  that  the  offer  is  unlimited,  so  that  it  may  extend  to  politi- 
cal questions,  to  questions  of  fact,  or  to  judicial  questions.  The 
Commission  of  Inquiry  is  limited  to  the  ascertainment  of  facts 
involved  in  a controversy.  The  Commission  of  Inquiry  is, 
therefore,  created  for  a specific  and  concrete  purpose  set  forth 
in  the  convention,  namely,  the  ascertainment  of  facts  in  con- 
troversy which  have  not  been  settled  by  diplomatic  means,  and 
which  are  either  impossible  or  difficult  of  settlement  by  such 
means. 


274 


THE  HAGUE  PEACE  CONFERENCES 


3.  Arbitration  and  the  Permanent  Court 

The  next  division  of  the  Convention  is  specific  and  relates  to 
arbitration,  which  may  be,  by  consent  of  the  parties,  general 
or  may  be  limited  to  the  solution  of  difficulties  of  a judicial 
nature.  It  will  therefore  be  advisable  to  explain  the  theory  of 
arbitration,  and  to  consider  the  procedure  devised  for  carrying 
into  effect  the  agreement  of  the  parties  to  arbitrate  a disputed 
question. 

The  Convention  of  1899  discussed  the  question  of  arbitral 
justice  within  the  compass  of  five  paragraphs  (Articles  15- 
19),  and  the  Revised  Convention  disposes  of  the  subject 
in  four  articles  (Articles  37-40.)  The  underlying  principle 
is  the  same  in  each  convention,  and  the  voluntary  character 
is  unchanged.  As  in  the  cases  of  good  offices  or  mediation 
and  the  Commission  of  Inquiry,  the  Conference  supposes 
a desire  that  arbitration  shall  be  resorted  to,  thus  creating 
a moral  though  not  a legal  obligation.  For  the  present 
purpose,  it  is  unnecessary  to  set  forth  the  various  steps  by 
which  arbitration  has  become  the  favored  means  of  settling 
international  controversies  of  a judicial  nature.  It  may  be 
said,  however,  that  the  recourse  to  arbitration  has  been  caused, 
or  if  not  caused,  has  been  facilitated  by  the  fact  that  contro- 
versies between  nations  usually  are  of  such  a nature  that  they 
cannot  be  tried  and  settled  satisfactorily  in  a national  court 
of  either  of  the  contending  parties,  although  it  is  recognized 
that  they  are  susceptible  of  judicial  treatment.  The  difficulty 
has  been  to  create  machinery,  chosen  by  the  contending  par- 
ties, but  which,  nevertheless,  shall  by  its  institution  and  per- 
sonnel offer  a guarantee  of  impartiality;  because  if  it  be  not 
impartial,  a resort  to  it  would  be  futile,  and,  in  the  second 
place,  the  result  would  be  unsatisfactory.  The  two  ques- 
tions are,  then,  interrelated;  for  a recourse  to  arbitration 
can  not  be  expected  if  nations  do  not  have  confidence  in  the 
machinery  and  in  the  arbitral  award,  and  if  the  machinery 
prove  defective,  it  must  follow  that  cases  will  not  be  sub- 
mitted to  arbitral  tribunals.  Therefore,  the  Conference,  while 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES  275 


treating  them  as  distinct,  for  the  theory  and  principle  of  arbi- 
tration may  be  considered  separately  and  by  itself,  yet,  never- 
theless, felt  it  necessary  to  provide  for  the  creation  of  a tribu- 
nal to  which  nations  might  safely  resort  in  order  to  obtain  a 
judicial  settlement  of  a controversy  which,  if  unsettled,  might 
produce  estrangement  if  not  an  actual  resort  to  arms.  Follow- 
ing the  order  of  the  Convention,  each  question  will  be  con- 
sidered separately. 

The  essence  of  arbitration  is  found  to  consist  in  the  settle- 
ment of  disputes  between  States  by  judges  of  their  own  choice 
on  the  basis  of  respect  for  law,  and  the  recourse  to  arbi- 
tration implies  an  engagement  to  submit  in  good  faith  to  the 
award.  (Article  37.)  The  recourse  is,  however,  voluntary, 
because  if  the  parties  do  not  wish  to  arbitrate,  it  follows 
that  they  will  not  choose  judges  to  whom  a question  may  be 
submitted;  it  is  likewise  essential  that  the  award  be  based 
upon  the  respect  for  law,  because  if  the  law  applicable  to  a 
case  be  disregarded,  the  award  is  not  merely  futile,  but  the 
system  is  discredited. 

The  Convention  next  considers  the  questions  susceptible 
of  arbitral  decision,  and  finds  them  to  consist  in  those  of  a 
legal  nature,  especially  the  interpretation  or  application  of 
international  conventions;  and  the  Convention  declares  its 
faith  in  arbitration,  not  only  from  a theoretical  view,  but 
based  upon  experience,  when  it  declares  it  to  be  the  most 
effective  and  at  the  same  time  the  most  equitable  means  of 
settling  disputes  which  diplomacy  has  failed  to  settle.  It  is 
but  a step  to  declare  a resort  to  arbitration  desirable  when 
nations  have  solemnly  declared  it  to  be  the  most  effective  and 
most  equitable  means,  and  this  the  Second  Conference  did  in 
the  following  apt  language,  proposed  by  the  Austro-Hun- 
garian delegation: 

Consequently,  it  would  be  desirable  that,  in  disputes  about 
the  above-mentioned  questions,  the  contracting  Powers,  if  the 
case  arise,  have  recourse  to  arbitration,  in  so  far  as  circum- 
stances permit. 


276 


THE  HAGUE  PEACE  CONFERENCES 


The  recommendation  is,  therefore,  tentative,  because  it 
makes  the  recourse  depend  upon  the  circumstances  of  the 
case,  and  as  to  the  permissibility  or  importance  of  arbitration, 
the  contracting  powers  are  necessarily  the  best  qualified  to 
determine;  for  a question  primarily  judicial  may  be  so  con- 
nected with  the  independence,  the  vital  interest,  and  honor  of 
a country  that  its  government  may  be  unwilling  to  submit  it 
to  arbitration.  In  the  present  state  of  public  opinion,  it  can 
not  well  be  imagined  that  a country  would  willingly,  and  of 
its  own  accord,  submit  the  question  of  its  independence  to  a 
tribunal,  and  the  same  objection  seems  to  apply,  though  not 
so  forcibly,  to  questions  of  vital  interest  and  honor.  There- 
fore, by  general  consent,  as  evidenced  in  practice,  these  three 
limitations  upon  recourse  to  arbitration  are  generally  expressed 
and  understood,  although  treaties  do  exist  in  which  nations 
agree  to  submit  all  questions  without  excluding  vital  interests 
and  honor. 

In  the  next  place,  inasmuch  as  arbitration  is  voluntary, 
parties  may  determine  whether  or  not  they  will  submit  exist- 
ing difficulties  or  questions  which  may  arise  in  the  future,  and 
it  may  be  said  in  passing,  that  the  fundamental  difference 
between  a special  and  a general  recourse  to  arbitration  lies 
in  the  fact  that,  in  the  one  case  nations  bind  themselves  by 
a present  voluntary  agreement  to  submit  past  difficulties, 
whereas  in  a general  treaty  of  compulsory  arbitration  nations 
oblige  themselves  in  advance  to  submit  difficulties  that  may 
arise. 

Recourse  to  arbitration  involves  necessarily  an  agreement 
of  the  parties,  because  a court  does  not  exist  to  which  a 
suitor  may  resort  and  by  summons  compel  the  appearance  of 
a defendant  state.  Given  the  voluntary  nature  of  arbitra- 
tion, it  follows  that  the  Arbitration  Convention  may  embrace 
any  dispute  or  disputes  of  a certain  category.  (Article  39.) 

It  will  be  seen  later  that  in  the  Conference  of  1899,  as  well 
as  in  the  recent  Conference,  an  attempt  was  made  to  secure  a 
general  agreement  to  arbitrate  international  difficulties  aris- 
ing from  a carefully  considered  category  of  subjects  which 


PACIFIC  SETTLEMENT  OF  INTEENATIONAL  DISPUTES  277 


would  not  involve  questions  of  independence,  vital  interest,  or 
honor,  and  that  the  powers  bind  themselvs  to  submit  dis- 
putes arising  from  these  categories  to  arbitration.  Arbitration 
would  thus  be  voluntary  for  non-enumerated  cases.  It  would 
be  obligatory  for  the  cases  enumerated  in  the  list.  Neither 
Conference  was  willing  or  able  to  make  arbitration  in  general 
or  in  special  enumerated  cases  obligatory,  except  in  the  case  of 
contract  debts;  but  the  recognition  of  arbitration  as  the  most 
efficacious  and  equitable  means,  and  the  further  declaration 
that  a resort  to  arbitration  is  desirable,  will  undoubtedly  pre- 
pare public  opinion  of  the  future  for  an  agreement  to  submit 
cases  susceptible  of  judicial  decision  to  an  arbitral  tribunal. 
Arbitration  will  thus  become  an  ordinary  procedure  in  the 
future,  either  by  express  agreement  or  by  the  voluntary  prac- 
tice of  enlightened  nations. 

It  would  seem  that  Article  19  (40  of  the  Revised  Conven- 
tion) was  unnecessary,  because  it  merely  recognized  a right 
which  is  inherent  in  sovereignty,  namely,  the  right  to  conclude 

new  agreements,  general  or  particular,  with  a view  to  extending 
compulsory  arbitration  to  all  cases  which  they  may  consider  it 
possible  to  submit  to  it. 

But  the  presence  of  the  article  has  given  a great  impetus  to 
the  negotiation  of  arbitration  treaties  and  amply  justifies  its 
existence. 

As,  however,  a resort  to  arbitration  and  the  continuing 
resort  to  arbitration  must  depend  upon  confidence  in  the  arbi- 
tral award,  it  follows  that  too  great  pains  can  not  be  taken 
to  secure  the  establishment  of  a tribunal  to  which  all  may  be 
willing  to  refer,  and  the  great  work  of  the  First  Conference, 
indeed  its  chief  title  to  remembrance,  lies  in  the  creation  of  a 
court,  in  reality  a panel  of  judges,  to  which  nations  might  freely 
and  with  confidence  resort  for  the  constitution  of  a tribunal 
for  the  judicial  settlement  of  international  disputes.  The 
creation  of  such  an  institution  was  not  outlined  in  the  Russian 
circulars,  nor  did  it  figure  in  the  final  program  presented  to 
the  First  Conference.  It  was,  however,  in  accordance  with 


278 


THE  HAGUE  PEACE  CONFERENCES 


the  spirit  of  the  Conference  and  the  spirit  of  the  program. 
Therefore,  the  American  delegation  of  1899  went  to  the  Con- 
ference with  a clear  and  definite  project  for  the  creation  of  an 
international  court  of  arbitration.  The  Russian  Government, 
charged  with  the  preparation  of  the  program,  does  not  seem 
to  have  given  the  matter  attention,  but  during  the  Conference 
proposed  a project.  The  British  delegation,  was  seemingly 
without  instructions  on  the  subject,  although  it  took  the  lead 
in  establishing  the  court,  and  although  the  court  was  estab- 
lished in  large  part  upon  the  motion  and  the  project  later  intro- 
duced by  Sir  Julian  Pauncefote,  first  delegate  of  Great  Britain. 
The  initiative  was  due  to  the  American  delegation,^  but  the 
credit  of  the  institution  does  not  belong  to  any  one  delegation 
or  to  any  one  man.*  It  is  the  result  of  a happy  cooperation,  in 
which  all  delegations  took  part,  and  the  result,  albeit  in  the 
form  of  a compromise,  marks  a distinct  era  in  the  world’s 
history. 

In  the  session  of  the  Third  Commission,  charged  with  the 
consideration  of  Article  8 of  the  Russian  program.  Sir  Ju- 
lian Pauncefote,  on  May  26,  1899,  a date  worthy  of  remem- 
brance in  international  progress,  rose  and  made  the  following 
remarks : 

Mr.  President:  Permit  me  to  inquire  whether,  before  enter- 
ing in  a more  detailed  manner  upon  our  duties,  it  would  not 
be  useful  and  opportune  to  sound  the  Committee  on  the  subject 
of  a question  which,  in  my  opinion,  is  the  most  important  of  all, 
namely,  the  establishment  of  a permanent  international  tribunal 

* See  Instructions  to  the  American  Delegation  of  1899,  Vol.  II,  pp.  8-9. 

It  turns  out  that  ours  is  the  only  delegation  which  has  anything  like  a 
full  and  carefully  adjusted  plan  for  a court  of  arbitration.  The  English  dele- 
gation, though  evidently  exceedingly  desirous  that  a system  of  arbitration 
be  adopted,  has  come  without  anything  definitely  drawn.  The  Russians 
have  a scheme;  but,  so  far  as  can  be  learned,  there  is  no  provision  in  it  for 
a permanent  court. — Andrew  D.  White’s  Autobiography,  Vol.  II,  p.  255. 

’ This  morning  we  had  another  visit  from  Sir  Julian  Pauncefote,  president 
of  the  British  delegation,  and  discussed  with  him  an  amalgamation  of  the 
Russian,  British  and  American  proposals  for  an  arbitration  tribunal.  He 
finds  himself,  as  we  all  do,  agreeably  surprised  by  the  Russian  document, 
which,  inadequate  as  it  is,  shows  ability  in  devising  a permanent  scheme 
both  for  mediation  and  arbitration. — Ibid.,  p.  273. 


PACIFIC  SETTLEMENT  OP  INTERNATIONAL  DISPUTES  279 


of  arbitration,  such  as  you  have  mentioned  in  your  address. 
Many  proposed  codes  of  arbitration  and  rules  of  procedure  have 
been  made,  but  up  to  the  present  time  the  procedure  has  been 
regulated  by  the  arbitrators,  or  by  general  or  special  treaties. 
Now  it  seems  to  me  that  new  codes  and  regulations  of  arbitra- 
tion, whatever  may  be  their  merit,  do  not  greatly  advance  the 
grand  cause  for  which  we  are  gathered  here.  If  it  is  desired  to 
take  a step  in  advance,  I am  of  the  opinion  that  it  is  absolutely 
necessary  to  organize  a permanent  international  tribunal  which 
can  be  called  together  immediately  at  the  request  of  contending 
nations.  This  principle  once  established,  I believe  we  shall  not 
have  any  difficulty  in  agreeing  upon  details.  The  necessity  of 
such  a tribunal  and  the  advantages  which  it  confers,  as  well  as 
the  encouragement  and  in  the  fact  the  prestige  which  it  will  give 
to  the  cause  of  arbitration,  have  been  demonstrated  with  as  much 
eloquence  as  force  and  clearness  by  our  distinguished  colleague, 
M.  Descamps,  in  his  interesting  essay  on  arbitration,  of  which 
an  extract  will  be  found  among  the  acts  and  documents  so  gra- 
ciously furnished  to  the  Conference  by  the  Netherlands  Govern- 
ment. I have  no  more  to  say  upon  this  subject,  but  I would  be 
very  grateful  to  you,  Mr.  President,  if  before  proceeding  any 
further,  you  would  consent  to  elicit  the  ideas  and  sentiments  of 
the  Committee  upon  the  proposition  which  I have  the  honor 
of  submitting  to  you,  touching  the  establishment  of  a permanent 
international  tribunal  of  arbitration.^ 

The  question  was  submitted  to  the  Committee  of  Examina- 
tion, and  the  plan  proposed  by  Sir  Julian  Pauncefote  was  by 
common  consent  accepted  as  the  basis  of  the  discussion.  The 
various  projects  are  set  forth  in  the  language  of  Mr.  Holls, 
as  the  best  qualified  authority  on  this  point. 

The  distinctive  features  of  the  British  proposal  were  as  follows : 

1.  The  appointment  by  each  Signatory  Power  of  an  equal 
number  of  arbitrators,  to  be  placed  upon  a general  list  entitled 
Members  of  the  Court;  2.  The  free  choice  from  this  list  of 
arbitrators,  called  to  form  a tribunal  for  the  particular  cases 
submitted  to  arbitration  by  the  various  powers;  3.  The 
establishment  at  The  Hague  of  an  internationd  bureau  acting 
as  chancellery  of  the  court;  4.  The  establishment  of  a council 
of  administration  and  control,  composed  of  the  diplomatic 
representatives  of  the  powers  accredited  to  The  Hague;  the 
Minister  of  Foreign  Affairs  of  the  Netherlands  being  added  as 
president  upon  the  suggestion  of  Ambassador  White. 

* Conference  Internationale  de  la  Paix,  1899,  part  IV,  p.  3.  The  trans- 
lation is  taken  from  Holls’  Peace  Conference,  pp.  234-237. 


280 


THE  HAGUE  PEACE  CONI'ERENCES 


The  Russian  project  had  for  its  fundamental  ideas  the  fol- 
lowing: 1.  The  designation,  by  the  present  Conference,  for 
a period  which  should  last  until  the  meeting  of  another  similar 
Conference,  of  five  powers,  to  the  end  that  each  of  these  in  case 
of  an  agreement  for  arbitration,  should  nominate  one  judge 
either  from  among  its  own  citizens  or  from  without;  2.  The 
establishment  at  The  Hague  of  a permanent  bureau  with  the 
duty  of  communicating  to  the  five  powers  appointed  the  request 
for  the  appointment  of  arbitrators  by  the  contending  parties. 

The  American  plan  differed  from  the  others  chiefly  in  the 
following  features:  1.  The  appointment  by  the  highest  court 
of  each  state  of  one  member  of  the  international  tribunal; 
2.  The  organization  of  the  tribunal  as  soon  as  nine  powers 
should  adhere  to  the  Convention;  3.  The  appointment  of  a 
particular  bench,  to  sit  for  each  case  submitted,  according  to  the 
agreement  between  the  contending  states.  This  agreement 
might  call  for  the  sitting  of  all  the  members  of  the  tribunal,  or 
for  a smaller  given  number,  not  less,  however,  than  three. 
Whenever  the  court  consisted  of  not  more  than  three  judges, 
none  of  the  latter  should  be  a native,  subject,  or  citizen  of  either 
of  the  litigating  states;  4.  The  right  of  the  litigating  states, 
in  particular  cases,  and  within  certain  limits  of  time,  to  have  a 
second  hearing  of  the  questioni  nvolved  before  the  same  judges. ‘ 

The  ideal  court  of  arbitration  would  be  one  composed  of 
a limited  number  of  judges  trained  in  the  interpretation  and 
administration  of  law,  national  as  well  as  international, 
in  session  permanently  at  The  Hague,  and  ready,  upon 
application,  to  receive  and  decide  controversies  submitted 
to  its  consideration;  but  inasmuch  as  international  arbi- 
tration is  stated  to  have  for  its  object  the  settlement  of 
disputes  between  States  by  judges  of  their  own  choice,  it 
would  be  necessary  for  the  nations  to  agree  in  advance  upon 
the  constitution  of  a court  and  to  agree  likewise  in  advance 
to  accept  its  personnel  as  competent  for  any  controversy  sub- 
mitted to  it  during  the  tenure  of  office  of  the  respective  judges. 
In  this  way,  the  judges  selected  would  be  of  their  own  choice. 
It  would  be  permanent,  but  a small  tribunal  could  not  hope 
to  include  within  it  judges  representing  all  the  nations  repre- 
sented at  the  Conference,  because  in  this  way  there  would  be  a 

‘ Holls’  Peace  Conference,  pp.  238-239. 

For  the  texts  of  the  various  proposals,  see  appendix,  pp.  789-796. 


PACIFIC  SETTLEMENT  OP  INTERNATIONAL  DISPUTES  281 


judicial  assembly  rather  than  a limited  and  restricted  court 
suited  for  the  judicial  determination  of  the  questions  sub- 
mitted. The  difficulty  was  met  by  the  provision  that  each 
nation  should  select  in  advance,  and  for  a period  of  six  years, 
not  more  than  four  persons  of 

known  competency  in  questions  of  international  law,  of  the 
highest  moral  reputation,  and  disposed  to  accept  the  duties  of 
arbitrator.  (Articles  23,  44.) 

This  would  not  be  a court — ^it  would  be  a panel  of  judges — 
from  which  list  the  litigating  nations  could  choose  any  desired 
number  to  constitute  an  arbitral  tribunal.  Not  being  a court, 
it  could  not  be  a permanent  court;  it  would  be,  however,  within 
the  limits  of  the  tenure,  a permanent  panel,  from  which  the 
tribunal  could  be  and  would  have  to  be  constituted  afresh 
for  each  case  submitted  to  it.  It  was,  however,  a first  and  a 
great  step  toward  the  creation  of  a permanent  tribunal,  and 
undoubtedly,  little  by  little,  there  will  be  established  a per- 
manent court  of  arbitration,  accessible  at  all  times,  and  con- 
ducting its  proceedings  according  to  international  procedure 
adopted  by  the  nations  of  the  world  represented  in  an  interna- 
tional conference. 

For  the  establishment  of  the  temporary  tribunal  it  was 
necessary  to  have  at  The  Hague  as  the  seat  of  the  court,  a 
clerical  force,  and  for  this  purpose  an  international  bureau 
was  established  to  serve  as  the  clerk  of  the  court  and  as  an 
intermediary  between  the  Powers.  This  bureau  should  be 
charged  with  the  custody  of  the  archives  and  the  administra- 
tion of  affairs  relating  to  the  court.  The  names  of  judges  se- 
lected by  the  various  Powers  should  be  communicated  to  it 
and  the  list  notified  by  the  bureau.  The  Powers  should  like- 
wise communicate  to  the  bureau  copies  of  arbitration  conven- 
tions as  well  as  arbitral  sentences  rendered  by  special  tribu- 
nals. As  the  duty  of  the  bureau  is  thus  largely  administra- 
tive, it  should  be  created  as  well  as  controlled  by  a higher 
organization,  composed  of  the  representatives  of  the  contract- 
ing powers.  Therefore,  a permanent  administrative  council 


282 


THE  HAGUE  PEACE  CONFERENCES 


was  created,  consisting  of  diplomatic  representatives  of  the 
Signatory  Powers  accredited  to  The  Hague  imder  the  presi- 
dency of  the  Minister  of  Foreign  Affairs  of  Holland.  The 
duties  of  this  council,  as  prescribed  by  the  revised  convention, 
can  not  be  stated  in  clearer  or  briefer  form  than  in  Article 
49,  of  the  Revised  Convention,  which  is  as  follows; 

The  Council  settles  its  rules  of  procedure  and  all  other  neces- 
sary regulations. 

It  decides  all  questions  of  administration  which  may  arise 
with  regard  to  the  operations  of  the  court. 

It  has  entire  control  over  the  appointment,  suspension,  or 
dismissal  of  the  officials  and  employes  of  the  bureau. 

It  fixes  the  payments  and  salaries,  and  controls  the  general 
expenditure. 

At  meetings  duly  summoned,  the  presence  of  nine  members 
is  sufficient  to  render  valid  the  discussions  of  the  council.  The 
decisions  are  taken  by  a majority  of  votes. 

The  council  communicates  to  the  contracting  powers  with- 
out delay  the  regulations  adopted  by  it.  It  furnishes  them 
with  an  annual  report  on  the  labors  of  the  court,  the  working 
of  the  administration,  and  the  expenditure.  The  report  like- 
wise contains  a resume  of  what  is  important  in  the  documents 
communicated  to  the  bureau  by  the  powers  in  virtue  of  Article 
43,  paragraphs  3 and  4. 

By  means,  therefore,  of  these  simple  provisions,  we  have 
a permanent  panel  of  judges  from  which  a temporary  tribunal 
may  be  constituted,  an  international  bureau  serving  as  the 
clerk,  an  administrative  organization  both  in  the  constitution 
and  in  the  operation  of  the  court,  and,  finally,  an  administra- 
tive council  for  the  control  and  supervision  of  the  bureau,  as 
well  as  for  the  communication  of  the  reports  of  the  labors  of 
the  court  to  the  contracting  powers.  As  the  bureau  is  the 
agent  of  the  contracting  powers  its  expenses  are  borne  by  them 
in  the  proportion  fixed  for  the  international  bureau  of  the 
Universal  Postal  Union.  (Article  50.)  The  machinery  thus 
exists  for  the  working  of  the  court,  and  its  supervision,  when 
created. 

It  is  next  necessary  to  consider  the  composition  of  the  tri- 
bunal, and  the  procedure  to  be  employed  before  it,  two  cap- 
ital points,  upon  the  success  of  which  the  resort  to  arbitration 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES  283 


must  depend.  It  has  been  stated  that  arbitration  is  voluntary, 
and  the  resort  to  the  permanent  court  is  likewise  voluntary. 
Powers  in  controversy  may  erect  special  tribunals  or  mixed 
commissions,  or  may  refer  a case  to  a single  arbiter,  but 
if  they  choose  of  their  own  volition  the  permanent  court,  then 
they  must  choose  the  judges  from  the  general  panel.  They 
are  at  liberty  to  compose  the  arbitration  tribunal  according 
to  their  pleasure,  but  if  they  do  not  by  direct  agreement  pro- 
vide to  the  contrary,  the  following  course  shall  be  pursued: 

Each  party  appoints  two  arbitrators,  of  whom  one  only  can 
be  its  national  or  chosen  from  among  the  persons  who  have 
been  selected  by  it  as  members  of  the  permanent  court.  These 
arbitrators  together  choose  an  umpire. 

If  the  votes  are  equally  divided,  the  choice  of  the  umpire  is 
intrusted  to  a third  power,  selected  by  the  parties  by  common 
accord. 

If  an  agreement  is  not  arrived  at  on  this  subject,  each  party 
selects  a Afferent  power,  and  the  choice  of  the  umpire  is  made 
in  concert  by  the  powers  thus  selected. 

If,  within  two  months’  time,  these  two  powers  can  not  come 
to  an  agreement,  each  of  them  presents  two  candidates  taken 
from  the  list  of  members  of  the  permanent  court,  exclusive  of 
the  members  selected  by  the  parties  and  not  being  nationals  of 
either  of  them.  Drawing  lots  determines  which  of  the  candi- 
dates thus  presented  shall  be  umpire.  (Article  45.) 

These  provisions  supplement  and  develop  the  corresponding 
article  (24)  of  the  First  Convention  in  the  interest  of  com- 
pleteness and  impartiality.  Under  the  Convention  of  1899, 
each  party  appoints  two  arbitrators  from  the  permanent  panel. 
By  the  Revised  Convention,  two  arbiters  are  chosen,  only  one 
of  whom  may  be  selected  from  the  subjects  or  citizens  of  the 
appointing  power.  It  is  thus  seen  that  two  of  the  four  chosen 
must  be  strangers  to  the  controversy  and  the  umpire,  however 
selected,  is  likely  to  be,  although  not  necessarily  so.  These 
four  choose  an  umpire,  but  if  they  fail  to  agree,  a third  power, 
selected  by  the  parties  in  common,  makes  the  appointment. 
It  may  well  be  that  the  parties  in  litigation  fail  to  agree  upon 
the  third  power,  because  an  agreement  upon  the  third  power 
may  well  be  an  agreement  upon  the  umpire.  In  such  a case. 


284 


THE  HAGUE  PEACE  CONFERENCES 


each  litigant  selects  a different  power,  and  the  choice  of  an 
umpire  is  made  in  concert  by  the  powers  thus  selected.  But 
it  may  happen  that  the  two  powers  selected  fail  to  agree,  and 
the  tribunal,  therefore,  can  not  be  constituted  by  this  method. 
In  such  case,  each  of  the  two  powers  selected  chooses  two 
candidates  from  the  list  of  members  of  the  permanent  court, 
excluding  therefrom  members  selected  by  the  parties,  as  well 
as  their  own  citizens  and  subjects.  Lot  then  determines 
which  of  the  candidates  thus  presented  shall  be  umpire.  It 
thus  follows  that  two  at  least  of  the  members  of  the  tribunal 
must  be  strangers  to  the  controversy,  and  the  umpire,  whether 
selected  by  the  parties  in  the  first  instance,  or  by  arbiters  of 
their  choice  or  finally  by  the  provisions  of  the  Convention,  is 
morally  certain  to  be  a stranger  to  the  controversy.  We  thus 
have  a guarantee  of  impartiality,  based  upon  the  fact  that 
two  of  the  five  arbiters  must  be,  and  that  a third  is  likely  to 
be  indifferent  to  the  litigation.  It  is  impossible  to  exaggerate 
the  importance  of  these  provisions,  because  an  objection  to 
arbitration  has  been  and  is  that  a member  of  the  tribunal  is 
more  or  less  biased  by  national  interest,  and  the  less  the  repre- 
sentation of  national  interests,  the  greater  the  guarantee  for 
its  impartiality. 

Article  46  expresses  in  succinct  form  the  next  step  to  be 
taken  by  the  parties  in  litigation : 

The  tribunal  being  thus  composed,  the  parties  notify  to 
the  bureau  their  determination  to  have  recourse  to  the  comt, 
the  text  of  their  compromis,  and  the  names  of  the  arbitrators. 

The  bureau  communicates  without  delay  to  each  arbitrator 
the  compromis,  and  the  names  of  the  other  members  of  the 
tribunal. 

The  tribunal  assembles  at  the  date  fixed  by  the  parties. 
The  Bureau  makes  the  necessary  arrangements  for  the  meeting. 

The  members  of  the  tribunal  in  the  exercise  of  their  duties, 
and  out  of  their  own  country,  enjoy  diplomatic  privileges  and 
immunities. 

The  tribunal  is  thus  constituted  for  the  submission  of  the 
case.  It  should  be  said,  however,  that  a controversy  may 
reach  an  acute  stage  without  a suggestion  from  either  party 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES  285 


that  a resort  be  made  to  the  permanent  court.  As  in  the  first 
section  of  the  Convention  it  was  provided  that  any  power  might 
extend  its  good  offices  and  mediation  to  a prospective  bel- 
ligerent, and  that  such  offer  should  be  considered  a friendly 
act,  so  it  was  provided  by  the  Convention  of  1899  that  the 
contracting  powers  could  call  attention  to  the  permanent  court 
and  remind  them  of  its  existence.  Good  offices  and  media- 
tion are  not  made  a duty.  It  is  a friendly  act,  but  no  state  is 
obliged  to  offer  its  services.  The  revision  of  1907,  as  previ- 
ously stated,  declared  that  the  extension  of  good  offices  and 
mediation  was  desirable.  The  Convention  of  1899  declared 
its  faith  in  arbitration  and  the  creation  of  its  hands  by  provid- 
ing that  “the  contracting  powers  consider  it  their  duty,  if  a 
serious  dispute  threatens  to  break  out  between  two  or  more 
of  them,  to  remind  these  latter  that  the  permanent  court  is 
open  to  them.” 

Consequently,  they  declare  that  the  fact  of  reminding  the 
parties  at  variance  of  the  provisions  of  the  present  convention, 
and  the  advice  given  to  them,  in  the  highest  interests  of  peace, 
to  have  recourse  to  the  permanent  court,  can  only  be  regarded  as 
friendly  actions.  (Article  27.) 

But,  as  powers  in  controversy  may  be  unwilling  to  enter 
into  direct  negotiations,  and  as  Article  8 of  the  old  and 
revised  convention,  provided  that  “seconds”  might  be 
appointed  by  the  parties  in  controversy  in  order  to  reach  an 
amicable  solution  of  the  difficulty,  the  Conference  of  1907 
provided  that. 

In  case  of  dispute  between  two  powers,  one  of  them  can 
always  address  to  the  international  bureau  a note  containing  a 
declaration  that  it  would  be  ready  to  submit  the  dispute  to 
arbitration. 

The  bureau  must  at  once  inform  the  other  power  of  the 
declaration.  (Article  48.) 

This  may  be  considered  an  explicit  declaration  that  a power 
may  do  indirectly  by  means  of  the  bureau  that  which  it  may 
do  directly,  but  however  unimportant  a provision  may  be,  if 
it  is  in  the  interest  of  peace,  and  facilitates  a recourse  to 


286 


THE  HAGUE  PEACE  CONFERENCES 


arbitration  and  the  permanent  court,  it  should  be  regarded  as 
a distinct  advance,  and  to  the  writer  this  harmless  provision  is 
as  progressive  as  it  is  simple  of  application.' 

4.  Arbitral  Procedure 

Supposing  that  the  court  is  constituted  for  the  considera- 
tion of  the  case,  the  matter  of  prime  importance  is  the  agree- 
ment for  the  submission  to  arbitration,  which  agreement  is 
technically  known  as  the  compromis.  As  the  recourse  to 
arbitration  is  voluntary,  it  follows  necessarily  that  the  parlies 
in  litigation  are  to  determine  the  nature  and  the  extent  of  the 
question  to  be  submitted  for  arbitration.  And  it  also  follows 
that  the  judgment  of  the  court  will  only  be  acceptable  in 
so  far  as  it  is  responsive  to  the  exact  question  submitted 
for  decision.  As  the  jurisdiction  of  the  tribunal  is  created  by 
the  agreement  of  the  parties,  and  as  the  award  depends  upon 
the  care  and  skill  with  which  the  arbiters  determine  the  exact 
point  or  points  submitted  for  their  consideration,  the  impor- 
tance of  settling  in  advance  the  issue  is  fundamental  and  can 
not  be  overlooked ; indeed,  the  agreement  upon  the  issue  may 
be  in  effect  decisive  of  the  case  and  the  negotiations  leading  to 

‘ The  amendment  of  1907,  due  to  the  initiative  of  Peru  and  Chile,  was  con- 
temptuously referred  to  more  than  once  as  a mere  “bureau  de  poste,”but 
it  is  scarcely  necessary  to  point  out  that  a bureau  de  poste,  or  bolte  aux 
lettres  has  its  uses.  The  article  of  1899  and  the  amendment  of  1907  denote 
progress  to  an  International  Bureau  of  good  offices  and  mediation  which, 
however  opposed  and  delayed,  is  certain  to  be  created. 

For  the  discussions  in  1899,  see  Conference  International  de  la  Paix,  1899, 
partly,  Comite  d’Examen,  pp.  17,  50-54;  ibid.,  proceedings  of  the  Third 
Commission,  pp.  53-58;  and  see  a resume  of  the  discussions  on  Article  27, 
in  M.  Descamps’  Report,  pp.  95-97  of  part  I of  the  Conference  Interna- 
tionale de  la  Paix. 

For  the  discussion  in  1907,  see  La  Deuxieme  Conference  Internationale 
de  la  Paix,  Vol.  II,  first  Commission,  First  Sous-Commission,  11th  Ses- 
sion, August  13,  1907;  Proceedings  of  Plenary  session.  First  Com- 
mission, 7th  Session,  October  7,  1907;  Proceedings  in  Committee  of 
Examination  A,  17th  session,  October  1,  1907,  and  see  further  the 
resume  in  Baron  Guillaume’s  Report,  La  DeuxiSme  Conference  Inter- 
nationale de  la  Paix,  Actes  et  Documents,  Vol.  I,  pp.  421-424. 


PACIFIC  SETTLEMENT  OF  INTEKNATIONAL  DISPUTES  287 


the  formulation  of  the  issue  are  of  the  gravest  importance  to  all 
concerned.  Reference  to  the  controversy  arising  out  of  the 
alleged  infractions  of  neutrality  by  Great  Britain  during  the 
American  Civil  War,  and  the  care  with  which  the  three  rules 
of  Washington  were  drawn  up  for  application  by  the  tribunal, 
shows  that  the  agreement  upon  the  issue  is  not  only  decisive, 
but  that  the  difficulties  connected  with  it  often  exceed  the 
gravity  of  the  task  assigned  to  the  court  in  applying  them  to 
the  concrete  facts  submitted  to  the  tribunal  for  its  considera- 
tion. But,  as  in  the  case  of  the  commissions  of  inquiry,  it 
is  a great  advantage  to  prospective  litigants  to  have  a clearly- 
defined  and  well-understood  code  of  procedure  for  their  guid- 
ance. Uniformity  is  desirable,  but  uniformity  must  not  be  at 
the  expense  of  the  untrammeled  judgment  of  the  parties  in 
framing  the  issue,  else  litigants  may  not  resort  to  arbitration 
or  to  the  court.  The  procedure,  therefore,  framed  by  the 
Conference,  is  in  the  nature  of  a recommendation,  and  its 
moral  sanction  is  in  practice  found  to  be  equivalent  to  an  obli- 
gation. Therefore,  the  initial  article  of  the  Revised  Conven- 
tion concerning  arbitration  procedure,  states  the  voluntary 
nature  in  the  following  apt  language: 

With  a view  to  encouraging  the  development  of  arbitration, 
the  contracting  powers  have  agreed  on  the  following  rules, 
which  are  applicable  to  arbitration  procedure,  unless  other 
rules  have  been  agreed  on  by  the  parties.  (Article  51.) 

The  voluntary  nature  of  the  compromis  is  thus  clearly 
recognized  and  set  forth  by  Article  52  of  the  Revised  Conven- 
tion, which  is  quoted  in  full : 

The  powers  which  have  recourse  to  arbitration  sign  a com- 
promis,  in  which  the  subject  of  the  dispute  is  clearly  defined, 
the  time  allowed  for  appointing  arbitrators,  the  form,  order,  and 
time  in  which  the  communication  referred  to  in  Article  63 
must  be  made,  and  the  amount  of  the  sum  which  each  party 
must  deposit  in  advance  to  defray  the  expenses. 

The  compromis  likewise  defines,  if  there  is  occasion,  the 
manner  of  appointing  arbitrators,  any  special  powers  which 
may  eventually  belong  to  the  tribunal,  where  it  shall  meet, 
the  language  it  shall  use,  and  the  languages  the  employment  of 


288 


THE  HAGUE  PEACE  CONFERENCES 


which  shall  be  authorized  before  it,  and,  generally  speaking, 
all  the  conditions  on  which  the  parties  are  agreed. 

The  establishment  of  the  compromis  presupposes  diplo- 
matic negotiation  and  an  agreement  reached  through  diplo- 
matic channels.  As  previously  stated,  an  agreement  may  be 
reached  with  difficulty,  and  notwithstanding  the  good-will 
of  parties  litigant  and  their  desire  to  reach  substantial  agree- 
ment, their  efforts  may  nevertheless  fail.  Difficult  in  itself, 
the  difficulty  is  enhanced  by  provisions  of  some  countries  which 
require  the  compromis  to  be  submitted  to  a branch  of  the 
government  other  than  that  charged  with  diplomatic  negotia- 
tions; for  it  may  well  happen  that  the  determination  of  the 
executive  may  not  be  viewed  with  favor  by  the  other  branch 
of  the  government,  be  it  a council,  a senate,  or  a parliament, 
whose  cooperation  is  necessary  to  give  binding  effect  to  the 
negotiations  undertaken  and  concluded  by  the  executive. 
The  agreement  to  arbitrate,  whether  it  be  general  or  special, 
binds  the  contracting  parties  to  submit  the  issue,  when  formu- 
lated, to  arbitration,  and  an  obligation  therefore  exists  to 
formulate  the  compromis.  If  its  formation  be  regarded  as 
mere  procedure,  the  agreement,  however  difficult,  may  be 
reached  by  the  executive  charged  with  the  negotiation  of 
the  difference.  If,  however,  the  cooperation  of  the  legisla- 
tive branch  of  the  government  be  necessary  for  its  final  sanc- 
tion, delays  inevitably  occur,  difficulties  arise,  and  the  problem, 
even  were  it  simple,  becomes  complicated.  In  the  United 
States  the  executive  negotiates  treaties,  but  their  ratification 
is  subject  to  the  advice  and  consent  of  the  Senate;  in  other 
words,  the  treaty-making  power  of  the  United  States  is  vested 
in  the  executive  and  the  Senate,  and  if  the  compromis  be 
regarded  as  a part  of  the  treaty-making  power,  it  seems  neces- 
sary that  the  cooperation  of  executive  and  Senate  is  necessary 
for  the  establishment  of  a compromis  in  the  United  States. 
It  is  true  that  the  treaty  creates  the  duty  to  negotiate  it,  but 
it  is  none  the  less  true  that  the  actual  settlement  of  the 
compromis  depends  upon  the  happy  cooperation  of  the 
executive  and  Senate.  If  they  differ,  the  difference  must 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES  289 


be  compromised,  and  the  agreement  ultimately  reached  must 
then  be  submitted  to  the  foreign  power  for  its  acceptance, 
amendment,  or  rejection.  The  governmental  organ  charged 
with  the  formation  of  the  compromis  must  be  indifferent  to 
the  foreign  power.  The  duty  to  formulate  is  international 
but  the  formulation  of  it  is  a question  of  constitutional  law  of 
the  respective  States,  for  it  is  self-evident  that  an  agreement 
to  be  binding  upon  a country  must  be  concluded  in  accordance 
with  the  constitutional  law  of  the  country.  Therefore,  in 
the  United  States,  as  previously  stated,  the  settlement  of 
the  compromis  involves  the  cooperation  of  President  and  Sen- 
ate, and  a general  or  special  treaty  of  arbitration  must  either 
reserve  the  cooperation  of  the  appropriate  branches  of  the 
Government,  or  it  must  be  understood  by  the  contracting  par- 
ties that  the  formulation  of  the  compromis  can  only  be  reached 
by  the  duly  constituted  internal  organs  of  the  Government. 

The  difficulty  here  mentioned  is  not  fimdamental,  but 
may  produce  delay.  Some  foreign  countries  consider  that 
a government  able  to  settle  the  compromis  without  a re- 
course to  legislative  branches  of  the  government  is  placed 
at  a disadvantage,  because  being  in  a position  to  formulate 
the  compromis  by  administrative  act,  the  treaty  not  only 
obliges  such  a government  to  take  the  necessary  action  but 
binds  it  the  moment  it  is  taken,  whereas  the  United  States  is 
not  bound  until  the  Senate  has,  by  its  advice  and  con- 
sent, given  binding  effect  to  the  compromis.  This  view, 
although  widely  current,  is  fallacious,  because  a compromis 
being  a diplomatic  agreement,  neither  party  is  bound  until 
both  are,  just  as  in  the  law  of  contracts  neither  party  is 
bound  until  an  acceptance  of  the  offer.  A compromis  pre- 
sented by  Germany  to  the  United  States  is  merely  an  offer 
which  may  be  withdrawn  until  it  is  accepted,  that  is,  ratified 
by  the  duly  constituted  authorities  of  the  United  States,  and 
as  neither  party  is  bound  unless  and  until  both  are,  the  spe- 
ciousness of  the  argument  is  apparent.  A treaty  may  be  pre- 
pared by  Germany  and  accepted  by  the  executive  of  the 
United  States,  but  no  one  would  seriously  pretend  that  the 


290 


THE  HAGUE  PEACE  CONFERENCES 


treaty  was  binding  on  Germany  if  it  failed  to  be  ratified  by 
the  Senate,  because,  to  revert  to  the  law  of  contracts,  an 
offer  is  not  binding  until  it  is  accepted,  and  the  acceptance  of 
the  Senate  is  evidenced  by  ratification. 

It  is,  however,  apparent  that  an  unwillingness  or  a refusal 
to  formulate  the  compromis  when  the  duty  so  to  do  is 
created  and  exists  by  a treaty,  tends  to  discredit  arbitration, 
because  a duty  is  created  and  undertaken  by  the  treaty  which 
may  be  frustrated  by  a refusal  to  negotiate  the  compromis. 
Therefore,  the  Conference  of  1907,  ‘'with  a view  to  encourag- 
ing the  development  of  arbitration,”  adopted  a provision 
which,  while  it  may  facilitate  the  negotiation  of  the  corrv- 
promis,  can  not  deprive  the  parties  in  controversy  from 
settling  it  according  to  their  matured  judgment  and  under- 
standing of  the  necessities  of  the  case.  The  article  in  ques- 
tion follows  in  translated  form : 

The  Permanent  Court  is  competent  to  settle  the  compro- 
mis, if  the  parties  are  agreed  to  have  recourse  to  it  for  the  pur- 
pose. 

It  is  similarly  competent,  even  if  the  request  is  only  made  by 
one  of  the  parties,  when  all  attempts  to  reach  an  understanding 
through  the  diplomatic  channel  have  failed,  in  the  case  of: 

1.  A dispute  covered  by  a general  treaty  of  arbitration 
concluded  or  renewed  after  the  present  Convention  has  come 
into  force,  and  providing  for  a compromis  in  all  disputes  and 
not  either  explicitly  or  implicitly  excluding  the  settlement  of  the 
compromis  from  the  competence  of  the  court.  Recourse  can 
not,  however,  be  had  to  the  court  if  the  other  party  declares  that 
in  its  opinion  the  dispute  does  not  belong  to  the  category  of  dis- 
putes which  can  be  submitted  to  compulsory  arbitration,  unless 
the  treaty  of  arbitration  confers  upon  the  arbitration  tribunal 
the  power  of  deciding  this  preliminary  question. 

2.  A dispute  arising  from  contract  debts  claimed  from  one 
power  by  another  power  as  due  to  its  nationals,  and  for  the  settle- 
ment of  which  the  offer  of  arbitration  has  been  accepted.  This 
arrangement  is  not  applicable  if  acceptance  is  subject  to  the 
condition  that  the  compromis  should  be  settled  in  some  other 
way.  (Article  53.) 

The  first  paragraph  of  this  article  seems  wholly  unobjec- 
tionable, because  nations  may  themselves  negotiate  the  com- 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES  291 


promis  or  refer  its  establishment  to  a person  or  body  possess- 
ing their  confidence.  The  remaining  paragraphs  of  the  article 
aim  to  facilitate  the  formulation  of  the  issue  by  means  of 
the  permanent  court,  upon  application  of  one  of  the  parties 
litigant,  when  diplomatic  negotiations  have  failed  to  result  in 
the  compromis;  but  the  resort  to  the  court  is  voluntary,  and 
the  competence  of  the  court  may  be  excluded  directly  or 
indirectly. 

In  the  first  place,  the  provision  has  no  retroactive  effect, 
and  applies  merely  to  general  treaties  of  arbitration  concluded 
or  renewed  after  the  present  Convention  has  come  into  force. 
Article  51  previously  quoted,  states  that  the  contracting 
powers  have  agreed  on  the  following  rules  unless  other  rules 
have  been  agreed  on  by  the  parties.  If,  therefore,  the  par- 
ties do  not  wish  the  court  to  be  competent,  they  may,  in  the 
body  of  the  treaty  of  arbitration,  expressly  exclude  the  com- 
petence of  the  court,  or  by  the  establishment  of  other  means 
inconsistent  with  the  cooperation  of  the  court,  its  competence 
is  withdrawn.  Thus,  a provision  in  a treaty  of  arbitration, 
to  which  the  United  States  is  a party,  providing  that  the 
compromis  is  to  be  made  by  the  President  with  the  advice 
and  consent  of  the  Senate,  excludes  the  competence  of  the 
court  directly,  because  it  makes  its  formulation  dependent 
upon  the  cooperation  of  the  treaty-making  power  of  the  United 
States.^  The  most  that  can  be  said  is  that  an  option  is 
created  by  the  Conference,  which  option  may  be  exercised  by 
the  parties,  who  are  thus  free  to  accept  or  reject  the  provisions 
of  the  article  in  any  treaty  concluded  or  renewed  after  the 
ratification  of  the  Convention. 

In  the  next  place,  the  right  is  reserved  to  a litigant  to  exclude 
the  cooperation  of  the  permanent  court, 

if  the  other  party  declares  that  in  its  opinion  the  dispute  does 

' For  resolution  of  the  Senate  excluding,  in  the  ratification  of  the  Con- 
vention for  the  Pacific  Settlement  of  International  Disputes,  the  compe- 
tency of  the  Permanent  Court  to  frame  the  compromis,  see  Vol.  II,  pp. 
355-356. 


292 


THE  HAGUE  PEACE  CONFERENCES 


not  belong  to  the  category  of  disputes  which  can  be  submitted  to 
compulsory  arbitration. 

The  meaning  of  this  is  that  if  the  defendant,  to  use  the  lan- 
guage of  the  law  court,  pleads  that  its  independence,  vital  interest 
or  honor,  of  which  it  is  the  sole  judge,  is  involved,  the  court  is 
incompetent  to  frame  the  compromis.  It  may  be,  however, 
that  the  parties  have  provided  specifically  in  the  treaty  that 
the  court  shall  be  competent  in  all  cases,  and  if  this  general 
consent  has  been  given  in  advance,  the  element  of  compul- 
sion is  absent,  by  reason  of  the  express  consent  of  the  contract- 
ing parties.  The  action  of  the  court,  therefore,  is  purely 
voluntary;  it  may  aid,  but  it  can  not  compel. 

The  last  paragraph  seeks  to  aid  the  formulation  of  the  com- 
promis in  cases  arising  out  of  contract  debts.  The  Conven- 
tion concerning  the  limitation  of  force  in  the  collection  of 
contract  debts  provides  that  the  contracting  powers  shall 
renounce  the  use  of  force  in  the  collection  of  such  debts,  but 
makes  this  renunciation  dependent  upon  the  acceptance  of 
arbitration,  upon  the  formulation  of  the  compromis  and  upon 
the  execution  of  the  award  when  rendered  by  the  arbitral 
tribunal.  If,  therefore,  arbitration  be  refused,  or  if  the 
compromis  be  not  formulated,  the  benefit  of  the  renuncia- 
tion of  force  is  lost.  To  prevent  this  unfortunate  state  of 
affairs,  the  Conference  invested  the  Permanent  Court  with 
the  power  of  formulating  the  compromis  but,  as  in  the  pre- 
vious case,  made  the  competence  of  the  court  dependent 
upon  the  express  consent  of  the  parties  in  controversy;  for 
it  is  stated  that 

this  arrangement  is  not  applicable  if  acceptance  is  subject  to 
the  condition  that  the  compromis  should  be  settled  in  some 
other  way. 

The  intervention  of  the  court  is,  therefore,  dependent  upon 
the  volition  of  the  contracting  parties.  That  there  may  be  no 
doubt  as  to  the  voluntary  nature  of  the  entire  transaction,  it 
is  necessary  to  state  in  this  connection,  that  there  is  no  per- 
manent court  either  in  being  or  in  session;  that  the  tribunal 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES  293 

for  the  establishment  of  the  compromis  can  only  be  created 
from  the  permanent  panel  of  judges,  misnamed  the  Permanent 
Court,  by  the  cooperation  of  the  parties,  and  that  if  they  are 
unwilling  to  invest  the  so-called  permanent  court  with  this 
important  function,  they  will  not  create  it.  As  the  court  is  not 
a permanent  body  to  which  the  dispute  may  be  referred,  but 
has  to  be  created  for  each  particular  case  to  be  submitted  to  it, 
it  follows  that  parties  litigant  will  not  establish  it  until  they 
have  agreed  upon  the  issue  to  be  presented,  unless  by  a previ- 
ous agreement  and  understanding,  they  wish  to  invest  the 
court  with  the  formulation  of  the  compromis.  It  follows 
necessarily,  therefore,  that  the  provisions  of  the  article  neither 
change  the  voluntary  nature  of  arbitration  nor  deprive  the 
parties  of  the  right  freely  to  determine  the  compromis.  It 
can  serve  merely  as  an  aid,  not  as  a hindrance.  In  cases 
in  which  the  formulation  of  the  compromis  is  considered  as 
a branch  of  arbitral  procedure,  and  not  as  a part  of  the  treaty- 
making power,  the  competence  of  the  court  may  be  of  no  little 
service;  for,  in  the  absence  of  constitutional  difficulties,  the 
establishment  of  the  compromis  as  well  as  the  consideration 
of  the  case  by  an  impartial  tribunal  may  not  only  safeguard, 
but  advance  international  justice. 

The  Convention  considers  an  arbitration  tribunal  composed 
of  five  as  the  type,  but  as  the  parties  are  free  to  constitute  the 
tribunal  according  to  their  judgment,  it  follows  that  the  duties 
of  arbiter  may  be  conferred  on  one  arbiter  alone,  or  upon 
several  arbitrators  selected  by  the  parties  as  they  please,  or 
chosen  by  them  from  the  members  of  the  Permanent  Court  of 
Arbitration,  established  by  the  present  Convention.  (Article  55.) 

Should  one  of  the  arbiters  die,  retire,  or  be  unable  for  any 
reason  to  discharge  his  functions,  the  vacancy  is  filled  in  the 
same  manner  as  the  original  appointment.  (Article  59.) 

The  umpire  is  president  of  the  tribunal,  ex  officio,  and  when 
the  tribunal  does  not  include  an  umpire,  it  appoints  its  own 
president.  (Article  57.) 

It  may  be,  as  it  very  often  has  been  the  case  in  the  past, 
that  a sovereign  or  chief  of  state  is  chosen  as  arbitrator,  and 


294 


THE  HAGUE  PEACE  CONFERENCES 


in  such  a case  it  seemed  inadvisable  to  determine  the  proce- 
dure to  be  followed.  Arbitral  procedure  is,  therefore,  settled 
by  him.  (Article  56.) 

The  Convention  leaves  the  seat  of  the  court  open  to  an  agree- 
ment of  the  parties,  but  provides  that  it  shall  sit  at  The  Hague 
unless  another  place  is  selected.  When  the  place  of  meeting 
is  fixed  it  can  not  be  altered  by  the  tribunal,  except  with  the 
consent  of  the  parties,  nor  can  it  sit  in  the  territory  of  a third 
power  without  the  latter’s  consent.  (Article  60.) 

By  agreement  of  the  parties,  the  tribunal  has  thus  been 
constituted,  the  issue  to  be  presented  determined,  and  the 
court  is  in  session  at  The  Hague,  ready  for  the  consideration 
of  the  case.  It  is  now  necessary  to  consider  the  procedure  to 
be  followed  and  the  successive  steps  to  be  taken  in  order  to 
obtain  a judgment  of  the  tribunal. 

In  the  first  place,  as  parties  must  be  represented  before 
the  tribunal  by  special  agents  to  act  as  intermediaries  between 
them  and  the  tribunal,  it  is  almost  superfluous  to  mention  that 
States  in  litigation  possess  the  same  rights  as  private  litigants 
in  mimicipal  courts  of  justice,  namely,  that  they  may  be  repre- 
sented before  the  tribunal  by  counsel  or  advocates  of  their 
own  choice.  There  is,  however,  a limitation  upon  the  selec- 
tion of  advocates,  in  the  interest  of  impartiality  of  the  proceed- 
ings, for  in  Article  62  it  is  stated  that : 

The  members  of  the  Permanent  Court  may  not  act  as  agents, 
counsel,  or  advocates,  except  on  behalf  of  the  power  which 
appointed  them  members  of  the  court. 

This  provision  is  objectionable  because  it  allows  a member 
of  the  court,  and  therefore  a prospective  judge,  to  appear  and 
argue  before  the  tribunal  selected  from  the  permanent  panel. 
It  is  fundamental  that  one  can  not  be  judge  and  advocate  in 
his  own  case,  and  that  a member  of  the  court  should  not  appear 
before  it  as  attorney,  counsel,  or  advocate.^  The  American 

^ The  American  delegation  of  1899  called  attention  to  the  impropriety 
of  a judge  of  the  Permanent  Court  appearing  as  agent  or  advocate  before 
his  fellow  judges  forming  the  Tribimal  of  Arbitration.  For  the  discussion 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES  295 


delegation  sought  to  amend  this  provision  in  the  above  sense, 
but  was  unable  to  do  so,  as  it  seemed  to  the  majority  unfair 
to  deprive  a litigant  state  of  its  best  counsel,  simply  because  he 
was  inscribed  on  the  list  of  judges.  It  was  suggested  that 
lawyers  were  numerous,  even  in  the  smallest  countries,  but 
the  amendment  was  unacceptable  to  the  majority. 

“As  a general  rule,”  says  Article  63,  “arbitration  proce- 
dure comprises  two  distinct  phases:  pleadings  and  oral  dis- 
cussions. 

“The  pleadings  consist  in  the  communication  by  the  respec- 
tive agents  to  the  members  of  the  tribunal  and  the  opposite 
party  of  cases,  counter-cases,  and,  if  necessary,  of  replies; 
the  parties  annex  thereto  all  papers  and  documents  called  for 
in  the  case.  This  communication  shall  be  made  either  directly 
or  through  the  intermediary  of  the  international  bureau,  in  the 
order  and  within  the  time  fixed  by  the  compromis. 

“The  time  fixed  by  the  compromis  may  be  extended  by 
mutual  agreement  by  the  parties,  or  by  the  tribunal  when  the 
latter  considers  it  necessary  for  the  purpose  of  reaching  a just 
decision. 

“The  discussions  consist  in  the  oral  development  before  the 
tribunal  of  the  arguments  of  the  parties.” 

It  is  thus  seen  that  the  first  phase  of  arbitral  procedure 
is  preliminary  or  preparatory  to  the  second,  and  that,  as  it 
consists  in  exchange  of  the  various  documents  composing  the 
cases,  it  is  as  unnecessary  that  the  tribunal  be  in  session  as  it 
would  be  that  a court  remain  in  session  while  the  counsel  in  a 
case  prepared  the  pleadings  for  ultimate  presentation  to  the 
court.  Article  65  recognizes  this,  and  provides  that  “unless 

in  the  First  Conference,  see  La  Conference  Internationale  de  la  Paix,  1899, 
part  IV,  Comite  d’Examen,  pp.  74-75;  Ibid.,  Third  Commission  pp.  60,  65- 
66;  M.  Descamps’  Report,  p.  101  of  part  I,  Conference  Internationale  de 
la  Paix. 

In  1907  a proposal  was  made  and  rejected  to  forbid  a member  of  the 
permanent  panel  from  appearing  as  agent  or  advocate  before  the  tem- 
porary tribunal.  For  discussions,  see  La  Deuxieme  Conference  Interna- 
tionale de  la  Paix,  Vol.  II,  Comite  d’Examen  C of  the  First  Commis- 
sion, 9th  Session,  September  11,  1907;  Comite  d’Examen  A of  First 
Commission,  17th  Session,  October  1,  1907;  Baron  Guillaume’s  Report 
Deuxieme  Conference  Internationale  de  la  Paix,  Actes  et  Documents,  Vol. 
I,  p.  132. 


296 


THE  HAGUE  PEACE  CONFERENCES 


special  circumstances  arise,  the  tribunal  does  not  meet  until 
the  pleadings  are  closed.”  And  of  the  special  circumstances, 
the  tribunal  itself  will  be  the  necessary  judge.  The  intention 
of  the  framers  of  the  convention  clearly  was  to  preserve  the 
distinction  between  the  two  phases  of  arbitral  procedure  by 
providing  that  each  should  be  finished  before  the  other  began. 
Therefore,  Article  67  says : 

After  the  close  of  the  pleadings,  the  tribunal  is  entitled  to 
refuse  discussion  of  all  new  papers  or  documents  which  one  of 
the  parties  may  wish  to  submit  to  it  without  the  consent  of  the 
other  party,  u 

It  is  familiar  doctrine  that  there  must  be  an  end  to  litiga- 
tion, and  it  is  the  opinion  of  the  Convention  that  there  must 
be  an  end  to  the  preparation  of  the  case,  and  that  when  once 
closed,  it  should  not  be  opened  without  the  consent  of  the 
other  party;  otherwise  it  would  be  within  the  power  of  one 
litigant  unduly  to  prolong  the  proceedings,  or  in  case  of  bad 
faith,  either  to  prevent  an  award  or  by  delay  and  sharp  practice 
to  cast  discredit  upon  the  proceedings  of  the  tribunal.  It  is 
hardly  necessary  to  add  that  a certified  copy  of  every  docu- 
ment produced  by  one  party  must  be  communicated  to  the 
other.  (Article  64.) 

Supposing,  therefore,  that  the  compromis  sets  forth  clearly, 
accurately  and  precisely,  the  questions  at  issue;  that  the 
tribunal  has  been  constituted  by  the  agreement  of  the  parties ; 
that  the  various  documents  in  the  case  have  been  pre- 
sented to  the  arbiters  and  to  the  parties  in  litigation,  that 
the  pleadings  are,  in  the  language  of  the  convention,  closed, 
and  that  the  tribunal  is  in  session  for  the  disposition  of  the 
case  as  presented,  it  becomes  necessary  to  consider  the  proce- 
dure to  be  followed  in  the  second  phase,  for  the  previous  steps, 
technically  termed  the  pleadings,  are  preparatory  and  prelimi- 
nary to  the  trial  of  the  case  before  the  tribunal.  This  phase 
of  the  procedure  is  not  improperly  termed  the  oral  discussion, 
because  the  case  as  made  out  in  the  preliminary  proceedings 
is  now  presented  orally  and  urged  upon  the  arbiters  in  session. 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES  297 


The  discussions  are  under  the  control  of  the  president;  they 
are  only  public  if  it  be  so  decided  by  the  tribunal,  with  the 
assent  of  the  parties ; they  are  recorded  in  the  minutes  drawn  up 
by  the  secretaries  appointed  by  the  president ; and  the  minutes, 
signed  by  the  president  and  secretary,  alone  possess  an  authen- 
tic character.  (Article  66.) 

The  purpose  of  the  tribunal  is  not  merely  to  decide  the  case, 
and  thus  end  the  controversy,  but  to  decide  it  justly  upon  all 
evidence  which  may  properly  be  submitted  to  it.  Therefore, 
the  tribunal  is  free  to  take  into  consideration  new  papers  or 
documents  to  which  its  attention  may  be  drawn  by  the  agents 
or  counsel  of  the  parties,  and  in  this  case,  the  tribunal  has  the 
right  to  require  the  production  of  such  papers  or  documents, 
but  is  necessarily  obliged  to  make  them  known  to  the  opposite 
party,  in  order  that  their  exact  meaning  and  effect  may  be 
appreciated  and  fully  established.  (Article  68.)  And  it  is 
not  merely  a requirement  of  good  faith,  but  it  is  a conven- 
tional obligation  that  the  parties  supply  the  tribunal  with  all 
the  information  desired  for  the  decision  of  the  case.  (Article 
75.) 

It  may,  however,  happen  that  the  tribunal  itself  becomes 
aware  of  the  existence  of  various  papers  tending  to  elucidate 
the  controversy.  In  such  case,  the  production  of  the  papers 
may  be  required,  and  the  tribunal  can  demand  all  necessary 
explanations.  In  case  of  refusal,  note  is  properly  taken  of 
it.  (Article  69.) 

It  may  be  that  the  evidence  necessary  for  the  consideration 
of  the  tribunal  is  within  the  control  of  neither  of  the  parties. 
The  contracting  powers,  therefore,  pledge  their  cooperation. 
The  proceeding  in  such  case  is  specified  with  admirable  brevity 
in  Article  76  as  follows : 

For  all  notices  which  the  tribunal  has  to  serve  in  the  terri- 
tory of  a third  contracting  power,  the  tribunal  shall  apply  direct 
to  the  government  of  that  power.  The  same  rule  applies  in  the 
case  of  steps  being  taken  to  procure  evidence  on  the  spot. 

The  requests  for  this  purpose  are  to  be  executed  as  far  as 
the  means  at  the  disposal  of  the  power  applied  to  under  its 


298 


THE  HAGUE  PEACE  CONFERENCES 


municipal  law  allow.  They  can  not  be  rejected  unless  the  power 
in  question  considers  them  calculated  to  impair  its  own  sover- 
eign rights  or  its  safety. 

The  court  will  equally  be  always  entitled  to  act  through  the 
power  on  whose  territory  it  sits. 

The  members  of  the  tribunal  are  necessarily  entitled  to 
put  questions  to  agents  and  counsel  of  the  parties,  and  to  ask 
that  doubtful  points  be  explained;  but  as  the  questions  put  and 
the  remarks  made  by  members  of  the  tribunal  in  the  course  of 
discussion  are  meant  solely  to  establish  the  facts  involved, 
such  questions  should  not  be  regarded  as  an  expression  of 
opinion  by  the  tribunal  in  general,  or  by  its  members  in  partic- 
ular. (Article  72.) 

It  may  happen  that,  however  carefully  drawn,  the  compro- 
mis  may  be  ambiguous,  and  thus  require  interpretation.  It 
is  familiar  doctrine  that  the  tribunal  should  be  competent  to 
interpret  the  compromis;  otherwise  the  proceedings  would 
be  delayed,  if  not  stopped.^  In  the  same  way,  the  tribunal 
should  be  competent  to  interpret  treaties  which  may  be 
invoked,  and  it  necessarily  is  judge  of  the  principles  of  law 
to  be  applied  unless  the  law  shall  have  been  specified  in  the 
compromis.  In  this  case,  however,  the  tribunal  would  be 
competent  to  interpret  and  apply  the  law,  because  the  com- 
petency of  the  court  extends  to  the  compromis  in  all  its  parts. 
(Article  73.) 

In  like  manner,  the  tribunal  is  entitled  to  issue  rules  of  pro- 
cedure for  the  conduct  of  the  case,  to  decide  the  forms,  order, 
and  time  in  which  each  party  must  conclude  its  arguments, 


* A controversy  arose  in  the  Proceedings  before  the  Mixed  Commission 
organized  imder  Article  VII  of  Jay’s  Treaty  as  to  the  power  of  the  Com- 
mission to  determine  its  jurisdiction.  This  was  settled  in  favor  of  the 
Commission  and  has  ever  since  been  accepted  as  corrected.  Lord  Chan- 
cellor Loughborough,  to  whom  the  question  was  referred,  replied,  “ That  the 
doubt  respecting  the  authority  of  the  commissioners  to  settle  their  own 
jurisdiction  was  absurd;  and  that  they  must  necessarily  decide  upon  cases 
being  within,  or  without,  their  competency.”  See  Moore’s  International 
Arbitrations,  Vol.  I,  pp.  324-328;  De  Lapradelle  et  Politis:  Recueil  des 
Arbitrages  Intemationaux,  Vol.  I,  pp.  99-105. 


PACIFIC  SETTLEMENT  OP  INTEENATIONAL  DISPUTES  299 


and  to  arrange  all  the  formalities  required  for  dealing  with  the 
evidence.  (Article  74.) 

The  tribunal  necessarily  considers  the  weight  of  the  evi- 
dence, and  of  the  documents  presented.  In  this  they  are 
aided,  necessarily,  by  the  agents  or  counsel,  who  are  authorized 
to  present  to  the  tribunal  all  the  arguments  they  may  consider 
advisable  in  the  defense  of  their  case.  (Article  70.)  They  are 
entitled  to  raise  objections  and  points,  but,  as  intimated, 
the  decision  of  the  tribunal  on  these  points  is  final,  and  there- 
fore can  not  form  the  subject  of  discussion.  (Article  71.) 

It  is  the  duty  of  the  agents  and  counsel  to  force  their  argu- 
ments upon  the  court,  and  as  the  purpose  of  the  tribunal  is 
to  inform  itself  accurately  as  to  the  bearing  of  the  argument, 
it  follows  that  the  tribunal  may,  of  its  own  motion,  solicit 
explanations  on  doubtful  points.  (Article  72.) 

When  the  agents  and  counsel  have  submitted  all  the  explana- 
tions and  evidence  in  support  of  their  case,  their  function 
ceases,  and  the  judicial  duty  of  the  tribunal  begins.  The  presi- 
dent thereupon  declares  the  discussion  closed,  and  the  tri- 
bunal considers,  in  the  light  of  the  evidence  and  the  arguments, 
the  decision  to  be  reached.  (Article  77.) 

The  deliberations  of  the  tribunal  are  necessarily  secret, 
and  it  seems  advisable  that  the  proceedings  of  the  council 
chamber  should  not  be  made  public.  It  is  not  to  be  expected 
in  all  cases  that  unanimity  may  be  reached;  therefore,  all 
questions  are  decided  by  a majority  vote  of  the  members 
of  the  tribunal.  (Article  78.) 

The  decision  of  the  tribunal  is  termed  an  award,  and  must 
give  the  reasons  on  which  it  is  based.  In  matter  of  form,  it 
contains  the  names  of  the  arbitrators,  and  is  signed  by  the 
president  and  registrar,  or  by  the  secretary,  acting  as  regis- 
trar. (Article  79.) 

The  reason  for  the  signature  of  the  president  and  registrar 
is  that  the  award  reached  is  the  solemn  judgment  of  the 
tribunal,  and  the  signature  of  the  president  and  registrar  cer- 
tifies the  authenticity  of  the  judgment — it  does  not  express 
the  opinion  of  the  president  as  such,  for  his  signature  merely 


300 


THE  HAGUE  PEACE  CONFERENCES 


guarantees  the  authenticity  of  the  award.  While  the  judg- 
ment is  the  result  of  deliberation  in  private,  the  award  is  read 
in  public  sitting,  the  agents  and  counsel  of  the  parties  being 
present  or  duly  summoned  to  attend.  (Article  80.) 

The  question  naturally  arises  as  to  the  effect  of  the  award. 
The  agreement  to  submit  may  specify  the  authority  to  be 
attached  to  the  award,  but  in  the  absence  of  a stipulation  to 
the  contrary,  the  award,  duly  pronounced  and  notified  to  the 
agents  of  the  parties,  settles  the  dispute  finally,  and  without 
appeal.  (Article  81.) 

There  must  be  an  end  of  litigation,  and  it  is  presumed  that 
the  parties  submitted  the  question  in  order  to  reach  a defini- 
tive solution.  It  is  in  the  interest  of  the  parties  that  the  deci- 
sion be  accepted  as  final,  but  it  is  essential  to  the  prestige  of 
international  arbitration  that  the  decision  be  just  as  well  as 
final;  for  parties  wall  not  submit  questions  to  a tribunal  if 
the  judgment  does  not  carry  with  it  the  conviction  of  just- 
ness. It  may  happen  that  the  decision  is  ambiguous,  and 
therefore,  as  in  the  case  of  the  compromis,  the  tribunal  might 
well  be  clothed  with  the  power  of  interpreting  the  award; 
therefore.  Article  82  provides: 

Any  dispute  arising  between  the  parties  as  to  the  interpre- 
tation and  execution  of  the  award  shall,  in  the  absence  of  an 
agreement  to  the  contrary,  be  submitted  to  the  tribunal  which 
pronounced  it. 

It  may  well  be,  however,  that  the  parties  in  controversy 
reserve  in  the  very  act  of  submission  the  right  to  demand  the 
revision  of  the  award.  The  happy  phrase  of  our  President 
Lincoln  renders  argument  unnecessary;  “Nothing  is  settled 
until  it  is  settled  right,”  and  in  view  of  this  necessity,  the 
American  delegation  in  1899  insisted  successfully  that  the  right 
of  revision  might  be  reserved  in  the  compromis,  and  in  the 
Conference  of  1907,  the  American  delegation  likewise  success- 
fully resisted  the  proposed  rejection  of  the  right  of  revision 
incorporated  in  the  First  Convention.  Article  55,  incorpor- 
ating this  view,  was  adopted  by  the  majority  of  the  First  Con- 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES  301 


ference,  and  in  1907,  notwithstanding  the  efforts  of  a persistent 
and  active  minority,  the  article  remained  unchanged.  It  is 
as  follows: 

The  parties  can  reserve  in  the  compromis  the  right  to  de- 
mand the  revision  of  the  award. 

In  this  case,  and  unless  there  be  an  agreement  to  the  con- 
trary, the  demand  must  be  addressed  to  the  tribunal  which 
pronounced  the  award.  It  can  only  be  made  on  the  ground  of 
the  discovery  of  some  new  fact  calculated  to  exercise  a decisive 
influence  upon  the  award,  and  which  was  unknown  to  the  tribu- 
nal and  to  the  party  which  demanded  the  revision  at  the  time 
the  discussion  was  closed. 

Proceedings  for  revision  can  only  be  instituted  by  a decision 
of  the  tribunal  expressly  recording  the  existence  of  the  new  fact, 
recognizing  in  it  the  character  described  in  the  preceding  para- 
graph, and  declaring  the  demand  admissible  on  this  ground. 

The  compromis  fixes  the  period  within  which  the  demand 
for  revision  must  be  made.  (Article  83.)^ 

In  the  next  place,  the  award  can  only  affect  the  parties  in  dis- 
pute, for  it  is  familiar  doctrine  that  a litigant  must  have  his  day 
in  court,  and  that  a judgment  to  which  he  is  not  a party 
and  in  which  he  did  not  have  the  right  to  appear  can  not  be 
binding  upon  him.  Therefore,  Article  84  limits  the  award 
to  the  parties  in  dispute,  but  as  it  may  well  happen  that  a 
decision  in  a particular  case  may  affect  others  than  the  parties 
directly  in  litigation,  the  Convention  provided  that  any 


* This  article  was  the  result  of  prolonged  discussion  in  both  Conferences. 
The  American  delegation  of  1899  was  instructed  to  secure  the  right  of  revi- 
sion in  the  following  terms:  “Every  litigant  before  the  International 
Tribunal  shall  have  the  right  to  make  an  appeal  for  reexamination  of  a 
case  within  three  months  after  notification  of  the  decision,  upon  presen- 
tation of  evidence  that  the  judgment  contains  a substantial  error  of  fact 
or  law.”  (See  Vol.  II,  p.  16.) 

The  discussions  of  1899  will  be  found  in  La  Conference  Internationale 
de  la  Paix,  1899,  part  IV,  Comite  d’Examen,  pp.  38-39,43-47,  ibid.,  pro- 
ceedings in  the  Third  Commission,  pp.  26-31.  M.  Descamps’  Report,  pp. 
105,  106,  of  part  I of  the  Conference  Internationale  de  la  Paix. 

For  the  discussions  in  1907,  see  La  Deuxifeme  Conference  International 
de  la  Paix,  Vol.  II,  First  Commission,  First  Sous-Commission,  11th  Ses- 
sion, October  13,  1907;  Plenary  Session,  First  Commission,  7th  Session, 
October  7,  1907;  Baron  Guillaume’s  Report,  La  Deuxieme  Conference 
Internationale  de  la  Paix,  Actes  et  Documents,  Vol.  I,  pp.  438—439. 


302 


THE  HAGUE  PEACE  CONFEKENCES 


parties  interested  in  the  award  are  entitled  to  intervene  in  the 
case.  To  quote  the  exact  language  of  the  Convention: 

When  it  concerns  the  interpretation  of  a convention  to  which 
powers  other  than  those  in  dispute  are  parties,  they  shall  inform 
all  the  Signatory  Powers  in  good  time.  Each  of  these  Powers  is 
entitled  to  intervene  in  the  case.  If  one  or  more  avail  them- 
selves of  this  right,  the  interpretation  contained  in  the  award  is 
equally  binding  on  them. 

It  should  be  said,  in  conclusion,  that  each  party  pays  its 
own  expenses,  and  an  equal  share  of  the  expenses  of  the  tribu- 
nal. (Article  85.) 

The  constitution  of  the  court  and  the  procedure  before  it 
are  complicated,  and  experience  shows  that  parties  are  unwill- 
ing to  submit  small  cases  to  it,  both  on  account  of  the  delay, 
as  well  as  the  expense  involved.  Therefore,  upon  the  initiative 
of  the  French  Delegation,  the  Conference  of  1907  devised  rules 
and  regulations,  with  a view  to  facilitate  the  working  of  a 
system  of  arbitration  in  disputes  admitting  of  summary  proce- 
dure. The  contracting  powers,  adopted  the  following  rules 
to  be  observed  in  the  absence  of  other  arrangements,  and 
subject  to  the  reservation  of  the  provisions  of  Chapter  III, 
in  so  far  as  applicable.  The  rules  in  question  are  set  forth 
in  the  following  four  paragraphs,  which  are  so  clear  and  pre- 
cise as  to  require  little  explanation.  They  are,  therefore,  set 
forth  without  comment: 

Each  of  the  parties  in  dispute  appoints  an  arbitrator.  The 
two  arbitrators  selected  choose  an  umpire.  If  they  do  not  agree 
on  this  point,  each  of  them  proposes  two  candidates  taken  from 
the  general  list  of  the  members  of  the  Permanent  Court,  exclu- 
sive of  the  members  appointed  by  either  of  the  parties,  and  not 
being  nationals  of  either  of  them;  which  of  the  candidates  thus 
proposed  shall  be  the  umpire  is  determined  by  lot. 

The  umpire  presides  over  the  tribunal,  which  gives  its  deci- 
sions by  a majority  of  votes.  (Article  87.) 

In  the  absence  of  any  previous  agreement,  the  tribunal, 
as  soon  as  it  is  formed,  settles  the  time  within  which  the  two 
parties  must  submit  their  respective  cases  to  it.  (Article  88.) 

Each  party  is  represented  before  the  tribunal  by  an  agent, 
who  serves  as  intermediary  between  the  tribunal  and  the  govern- 
ment who  appointed  him.  (Article  89.) 


PACIFIC  SETTLEMENT  OP  INTEKNATIONAL  DISPUTES  303 


The  proceedings  are  conducted  exclusively  in  writing.  Each 
party,  however,  is  entitled  to  ask  that  witnesses  and  experts 
should  be  called.  The  tribunal  has,  for  its  part,  the  right  to 
demand  oral  explanations  from  the  agents  of  the  two  parties, 
as  well  as  from  the  experts  and  witnesses  whose  appearance  in 
Court  it  may  consider  useful.  (Article  90.) 

Such,  in  brief,  are  the  provisions  of  the  convention  for  the 
peaceful  adjustment  of  international  disputes,  framed  by  the 
Conference  of  1899,  and  revised  by  the  Conference  of  1907. 
The  Convention  as  a whole  has  but  a single  object,  namely, 
to  prevent  the  recourse  to  arms  in  matters  which  are  suscepti- 
ble of  a peaceful  and  judicial  settlement.  Good  offices  and 
mediation  are  raised  to  the  dignity  of  an  international  right, 
and  their  exercise  is,  by  the  express  agreement  of  the  contract- 
ing powers,  not  to  be  considered  an  unfriendly  act.  The  Com- 
mission of  Inquiry  is  created  and  furnished  with  an  elaborate 
procedure.  Arbitration  is  recognized  as  at  once  the  nost 
efficacious  and  equitable  means  of  settling  an  international  dis- 
pute incapable  of  adjustment  by  diplomatic  means.  A per- 
manent panel  of  judges  is  created,  from  which  the  parties  may 
select  a temporary  tribunal,  to  which  the  question  in  dispute 
may  be  submitted  for  adjudication.  The  parties  are  free  to 
constitute  the  tribunal  in  any  manner  which  seems  to  them 
most  likely  to  secure  an  impartial  and  judicial  decision. 
They  are  free  to  establish  the  compromis  defining  the  issue 
and  prescribing  the  procedure  to  be  followed;  but  the  Confer- 
ence recommended  a carefully  devised  code  of  procedure, 
which,  although  it  lacks  a legal,  nevertheless  possesses  a 
great  moral  sanction,  and  in  order  to  facilitate  the  submis- 
sion of  cases  to  arbitration,  provision  is  made  for  a smaller 
court,  and  a simplified  procedure,  in  order  that  delays  may  be 
prevented  and  expense  reduced  to  a minimum. 

The  Convention  of  1899  for  the  Peaceful  Settlement  of 
International  Disputes,  and  in  a lesser  degree  the  revision  of 
1907,  were  the  result  of  great  discussion  and  the  careful  weigh- 
mg  of  each  provision  creating  or  seeming  to  create  an  obliga- 
tion upon  the  States  represented  at  the  Conference.  The 


304 


THE  HAGUE  PEACE  CONFERENCES 


simplest  and  seemingly  innocent  article  was  subjected  to  a 
critical  examination  in  order  that  the  States  might  know  in 
advance  the  obligation  assumed.  The  greater  States  were  as 
a rule  willing  to  assume  a legal  obligation  whereas  the  smaller 
States,  particularly  the  Balkan  Peninsula,  feared  that  the 
acceptance  of  a legal  obligation  was  a renunciation  of  their 
sovereignty.  This  attitude  seemed  at  times  incomprehensible 
to  the  larger  States  accustomed  to  sovereignty  and  sure  of  its 
continued  possession.  The  Balkan  States  looked  upon  their 
sovereignty  as  sacred,  and,  in  view  of  the  sacrifice  at  which 
their  independence  was  purchased,  it  was  perhaps  natural 
that  they  should  cherish  it  as  a treasured  possession  and  fear 
that  good  offices  and  mediation,  commissions  of  inquiry,  the 
recognition  of  arbitration  although  voluntary  and  the  duty 
to  resort  to  it  might  deprive  them  of  the  freedom  of  action  in  a 
crisis,  not  to  be  discussed  at  a conference,  but  nevertheless 
within  the  range  of  possibility.  The  result  was  that  a clean- 
cut  legal  obligation  was  reduced  to  a recommendation  by  the 
addition  of  the  modifying  phrase,  if  it  is  possible,  as  far  as 
circumstances  permit.  The  juris  vinculum,  dear  to  the  civil- 
ian, was  thus  lacking;  but  an  obligation,  recognized  in  the 
moral  if  not  in  the  legal  forum  was  created.  The  good  faith 
of  the  contracting  parties  was  pledged  and  a moral  obligation  in 
the  world  of  international  relations  is  shown  to  have  the  force 
of  law.  In  a certain  sense  all  international  contracts  rest  upon 
good  faith,  because  an  international  executive  with  power 
to  enforce  obedience  is  unknown  to  international  law.  Public 
opinion  is  its  only  sanction;  but  public  opinion  takes  no 
note  of  legal  subtleties  and  enforces  a legal  right  or  condemns 
a moral  wrong  with  indifference.  The  power  of  an  idea  for 
good  cannot  be  measured  by  logic  nor  the  progress  of  the 
world  defeated  by  the  absence  of  a juris  vinculum.  The  test 
of  a provision  is  that  it  carries  obedience  with  it  and  the  moral 
obligations  of  the  convention  of  1899  for  the  peaceful  settle- 
ment of  international  disputes  have  already  borne  fruit. ‘ 

* See  Mr.  Root’s  address  on  the  Sanction  of  International  Law,  American 
Journal  of  International  Law,  Vol.  II,  1908,  pp.  451-457. 


PACIFIC  SETTLEMENT  OF  INTERNATIONAL  DISPUTES  305 


It  is,  however,  a matter  of  importance  and  of  no  little 
interest  to  point  out  some  of  the  difficulties  met  and  overcome 
in  drafting  the  convention.  These  difficulties  are  in  the  sup- 
posed legal  obligation  in  the  original  drafts  of  good  offices 
(Article  3);  commission  of  inquiry  (Article  9);  the  compul- 
sory character  of  arbitration;  the  establishment  of  the  per- 
manent court  in  general;  the  duty  of  Signatory  Powers  to 
call  the  attention  of  Powers  in  controversy  to  the  fact  that  the 
court  is  open  to  them.  (Article  27). 

In  regard  to  good  offices  and  mediation,  M.  Veljkovich  of 
Servia  proposed  to  insert  in  the  text  of  Article  3 — providing 
that  the  offer  of  good  offices  and  mediation  can  never  be  con- 
sidered as  an  unfriendly  act — the  clause  that  refusal  to  accept 
the  proffer  cannot  be  regarded  as  unfriendly.  The  reason  for 
the  amendment  lay  in  the  fact  that  it  might  be  difficult  for  a 
small  power  to  refuse  an  offer  made  by  large  and  powerful 
States,  which  might  take  umbrage  at  a refusal  unless  it  were 
specifically  understood  that  the  offer  and  the  refusal  stood  on 
an  equality. 

Again,  the  voluntary  nature  of  good  offices  and  mediation 
was  insisted  upon. 

In  the  name  of  the  Royal  Government  of  Servia,  we  have  the 
honor  to  declare  that  the  adoption  by  us  of  the  principle  of  good 
offices  and  mediation  does  not  imply  a recognition  of  the  right 
of  a third  state  to  use  these  means  other  than  with  the  extreme 
reserve  required  by  the  delicate  nature  of  the  transaction. 

We  only  admit  good  offices  and  mediation  on  condition  that 
they  preserve  fully  and  integrally  their  character  of  purely 
friendly  counsel  and  we  will  never  accept  them  in  such  forms  and 
circumstances  as  impart  to  them  the  character  of  intervention.^ 

The  slight  addition  of  the  word  “desirable”  to  Article  3, 
making  the  offer  of  good  offices  and  mediation  desirable  as 
well  as  useful,  was  accepted  in  1907  without  criticism  or  com- 
ment, although  it  would  undoubtedly  have  provoked  opposi- 

‘ Vol.  n,  pp.  165-166.  See  M.  Descamps’  Report,  Articles  3,  8,  pp.  77-80. 
Conference  Internationale  de  la  Paix,  part  I. 


306 


THE  HAGUE  PEACE  CONFERENCES 


tion  in  1899.  A thing  may  be  useful  without  being  desirable, 
and  desirability  is  a step  toward  an  obligation. 

The  commission  of  inquiry  due  to  Russian  initiative  in 
1899  justified  in  1904  its  creation  by  preventing,  it  may  be, 
war  between  Russia  and  Great  Britain  from  the  Dogger 
Bank  incident.  Article  9 creating  the  institution  is  as  fol- 
lows: 

In  disputes  of  an  international  nature  involving  neither  hon- 
or nor  vital  interests,  and  arising  from  a difference  of  opinion 
on  points  of  fact,  the  Contracting  Powers  deem  it  expedient 
and  desirable*  that  the  parties  who  have  not  been  able  to  come 
to  an  agreement  by  means  of  diplomacy,  should,  as  far  as  circum- 
stances allow,  institute  an  International  Commission  of  Inquiry, 
to  facilitate  a solution  of  these  disputes  by  elucidating  the  facts 
by  means  of  an  impartial  and  conscientious  investigation. 

The  original  Russian  draft  imposed  an  obligation  of  the 
mildest  and  seemingly  unobjectionable  kind: 

In  cases  in  which  divergences  of  views  occur  between  the  Signa- 
tory States  in  connection  with  local  circumstances  giving  rise 
to  litigation  of  an  international  character  which  cannot  be 
settled  by  the  ordinary  diplomatic  means  but  in  which  neither 
the  honor  nor  vital  interests  of  these  States  are  engaged,  the 
governments  interested  agree  to  institute  (conviennent  d’instituter) 
an  international  commission  of  inquiry  in  order  to  arrive  at  the 
causes  of  the  disagreement  and  to  clear  up  on  the  spot,  by  an 
impartial  and  conscientious  examination,  all  questions  of  fact.^ 

Dr.  Lammasch  of  Austria-Hungary  feared  that  the  obliga- 
tion to  institute  the  commission  would  provoke  criticism,  and 
therefore  proposed  in  the  Committee  of  Examination  to  recom- 
mend the  institution  as  useful  but  to  leave  recourse  to  it 
voluntary.  The  committee,  however,  retained  the  obligation, 
softening  it  as  follows : 

Agree  to  have  recourse  as  far  as  the  circumstances  permit 
(conviennent  de  recourir,  en  tant  que  les  circonstances  le  per- 
mettent). 

* The  word  “desirable”  was  added  in  1907  at  the  instance  of  the  Amer- 
ican delegation. 

^ See  appendix,  p.  783. 


PACIFIC  SETTLEMENT  OF  INTEENATIONAL  DISPUTES  307 


As  thus  framed,  the  institution  was  savagely  attacked  by 
M.  Beldiman  of  Roumania  as  an  innovation  contrary  to  the 
sovereignty  of  States  and  as  offering  manifold  dangers  by 
reason  of  the  obligation  created  by  the  wording  of  the  article.^ 
Servia  called  attention  to  the  inequality  between  the  large 
and  small  States  in  that  the  weak  would  be  forced  to  consent 
to  inquiry  at  the  behest  of  the  strong;  Greece  formulated 
its  reserves  and  Bulgaria  stated  that  recourse  to  the  insti- 
tution should  be  voluntary.  As  a result  of  these  objections 
and  in  a spirit  of  compromise,  the  Committee  of  Examination 
proposed  a formula  according  to  which  (in  controversies  of  an 
international  nature  arising  from  a difference  of  opinion  upon 
facts) 

the  Signatory  Powers  deem  it  expedient  (jugent  utile)  in  order 
to  facilitate  the  solution  of  these  controversies  that  the  parties 
who  have  not  been  able  to  reach  an  agreement  through  diplo- 
matic channels  institute  commissions  of  inquiry  in  order  to 
clear  up  by  an  impartial  and  conscientious  examination  all  ques- 
tions of  fact. 

The  voluntary  character  of  this  article  seemed  to  be  clear 
and  was  satisfactory  to  Persia  and  Greece.  Roumania,  how- 
ever, insisted  that  the  States  were  not  sufficiently  safeguarded ; 
that  controversies  engaging  the  honor  or  essential  interests 
should  not  be  included,  and  that  the  further  qualification 
“as  far  as  circumstances  permit”  be  incorporated  in  the  article. 
M.  Beldiman  stated  that  his  government  could  only  accept 
the  institution  provided  these  concessions  were  made,  and  the 
commission  in  a spirit  of  conciliation  adopted  his  text  of 
Article  9 as  it  stands  in  the  Convention  of  1899  and  the  revi- 
sion of  1907.  The  attempt  of  Russia  to  make  recourse  to  the 
commission  of  inquiry  obligatory  failed  in  the  present  Confer- 
ence as  it  seemed  inadvisable  to  reopen  the  subject. 

The  obligation  to  have  recourse  to  the  commission  is  thus 
purely  moral  and  the  letter  of  the  text  seems  to  exclude  ques- 

* Conference  Internationale  de  la  Paix,  1899,  part  IV,  Third  Commission, 
pp.  32-38. 


308 


THE  HAGUE  PEACE  CONFERENCES 


tions  involving  honor  and  essential  interests.  This  does  not 
and  cannot  mean  that  powers  in  controversy  may  not  submit 
such  questions  to  a commission ; for  as  sovereign  states  they 
are  free  to  do  what  seems  best  in  view  of  all  the  circumstances. 
The  article  means  that  a power  is  not  to  be  forced  against  its 
will  to  constitute  a commission  of  inquiry  when  in  its  opinion 
its  honor  and  essential  interests  are  involved.  The  attempt  of 
Russia  to  amend  Article  9 by  investing  the  commission  with  the 
power  to  find  responsibility  as  well  as  the  facts  likewise  failed 
in  1907.’  And  yet  it  is  to  be  noted  that  in  the  only  instance  in 
which  a Commission  of  Inquiry  has  been  formed,  in  the  Dogger 
Bank  incident,  the  honor  and  essential  interests  of  Russia  and 
Great  Britain  were  involved,  and,  by  special  agreement  between 
the  two  countries,  the  commission  was  empowered  to  find  and 
actually  did  find  responsibility.* 

Notwithstanding  that  there  was  no  legal  obligation  to 
resort  to  the  commission  of  inquiry,  its  very  existence  forced 
Great  Britain  and  Russia  to  have  recourse  to  it,  and  there  can 
be  no  doubt  that  the  insistence  of  public  opinion  will  force 
resort  to  the  commission  in  spite  of  its  voluntary  character 
and  irrespective  of  honor  or  essential  interests  being  involved. 
Franklin’s  statement  that  “there  never  was  a good  war  or  a 
bad  peace,”  is  nearer  acceptance  today  than  it  was  a hundred 
years  ago. 

The  next  struggle  in  the  Conference  was  over  the  subject  of 
arbitration  and  the  establishment  of  the  so-called  permanent 
court.  As  will  be  seen  presently,  the  Russian  government 
presented  a carefully  selected  list  of  subjects  of  a purely  legal 
nature  for  compulsory  arbitration.  Questions  of  a political 
nature,  as  well  as  those  involving  vital  interests  and  national 
honor  were  excluded,  and  it  was  hoped  that  the  countries 
might  well  bind  themselves  in  advance  to  arbitrate  contro- 

’ See  Baron  Guillaume’s  Report,  La  Deuxieme  Conference  Internationale 
de  la  Paix,  1907,  Actes  et  Documents,  Vol . I,  pp.  402-403. 

^ For  the  protocol  between  Great  Britain  and  Russia,  and  the  finding 
of  the  International  Commission  of  Inquiry,  see  American  Journal  of  Inter- 
national Law,  Vol.  II,  pp.  929-936. 


PACIFIC  SETTLEMENT  OF  INTEKNATIONAL  DISPUT’ES  309 


versies  arising  out  of  the  various  cases  enumerated  in  the  list. 
For  example,  it  did  not  seem  impossible  to  agree  to  arbitrate 
pecuniary  claims  when  the  principle  of  indemnity  was  admitted 
and  it  only  remained  to  tax  the  amount  of  the  damage.  This 
time  it  was  the  opposition  of  a great  power  that  defeated  the 
will  of  the  overwhelming  majority.  Dr.  Zorn  declared  that 
Germany,  without  desiring  to  modify  existing  conventions 
which  established  the  principle  of  compulsory  arbitration,  did 
not  consider  the  experience  up  to  date  sufficient  to  give  a more 
general  and  immediate  development  to  these  conventions ; and 
that  a too  rapid  introduction  of  compulsory  arbitration  into 
International  Law  offered  greater  danger  than  advantage 
from  the  point  of  view  of  peace  between  the  States.  Inas- 
much as  there  were  more  than  a hundred  cases  actually  arbi- 
trated or  pending  from  the  conclusion  of  Jay’s  Treaty  in  1794 
to  the  opening  of  the  Conference,  it  must  be  said  that  desire 
rather  than  experience  was  lacking. 

The  opposition  of  Germany  would  not  5deld  to  argument 
and  as  a result  Article  19  of  the  Convention  of  1899  was  framed 
and  adopted  permitting  but  not  requiring  nations  to  conclude 
arbitration  treaties.  Seemingly  a surrender  rather  than  a com- 
promise, and  with  not  the  slightest  suggestion  of  compulsory 
arbitration  either  in  its  letter  or  spirit,  this  confession  of  defeat 
has  been  the  starting  point  of  the  series  of  arbitration  treaties 
fast  encircling  the  world  in  a web  of  peace.  The  recommen- 
dation in  International  Law  is  not  far  removed  from  a com- 
mand, and  Germany,  as  will  be  seen,  has  negotiated  two 
general  treaties  of  arbitration,  one  with  Great  Britain  and 
another  with  the  United  States,  which  latter  was  unfortunately 
not  ratified  by  the  Senate,  or  rather  was  ratified  in  amended 
form. 

As  Roumania  rejected  the  suggestion  of  an  obligation  in  the 
commission  of  inquiry,  it  can  readily  be  imagined  that  “The 
Royal  Government,”  as  M.  Beldiman  was  pleased  to  term  it, 
was  opposed  to  any  article  pledging  it  to  arbitrate  an  interna- 
tional difference  because  its  freedom  of  action  would  thus  be 
hampered.  Therefore,  in  regard  to  the  object  of  international 


310 


THE  HAGUE  PEACE  CONFERENCES 


arbitration  (Article  15)  the  recognition  of  arbitration  as  the 
most  efficacious  as  well  as  the  most  equitable  means  (Article 
16)  and  the  obligation  to  submit  in  good  faith  to  the  arbitral 
award  (Article  18)  the  Delegation  of  Roumania  formulated  the 
following  reserves  repeated  in  like  terms  for  the  revision  of  1907  ; 

The  Royal  Government  of  Roumania,  being  completely  in 
favor  of  the  principle  of  facultative  arbitration,  of  which  it 
appreciates  the  great  importance  in  international  relations, 
nevertheless,  does  not  intend  to  undertake,  by  Article  15,  an 
engagement  to  accept  arbitration  in  every  case  there  provided 
for,  and  it  believes  it  ought  to  form  express  reservations  in  that 
respect. 

It  cannot  therefore  vote  for  this  Article,  except  under  that 
reservation. 

The  Royal  Government  of  Roumania  declares  that  it  can  not 
adhere  to  Article  16  except  with  the  express  reservation,  entered 
in  the  proc&s-verbal,  that  it  has  decided  not  to  accept,  in  any 
case,  an  international  arbitration  for  disagreements  or  disputes 
previous  to  the  conclusion  of  the  present  Convention. 

The  Royal  Government  of  Roumania  declares  that  in  adher- 
ing to  Article  18  of  the  Convention,  it  makes  no  engagement  in 
regard  to  obligatory  arbitration.  ‘ 

The  project  for  a permanent  court  of  arbitration  likewise 
met  with  Germany’s  disapproval,  but,  at  the  sacrifice  of  com- 
pulsory arbitration,  the  consent  and  active  cooperation  of 
Germany  were  gained  for  the  court.  Dr.  Zorn  was  as  earnest 
and  zealous  in  the  creation  of  the  court  as  any  member  of  the 
Conference  as  soon  as  his  government  yielded  to  necessity  or 
entreaty,  and  his  conception  of  the  court  was  truer  than  that  of 
any  of  its  partisans.  The  failure  of  the  armament  proposals, 
and  the  fear  that  the  Conference,  contenting  itself  with  the 
codification  of  the  law  of  war,  would  otherwise  do  little  for 
the  cause  of  peace,  aroused  the  leading  delegates  to  renewed 
effort  in  order  that  the  Conference  should  justify  the  name  of 
a peace  conference  which  public  opinion  had  given  it.  Good 
offices  and  mediation  were  not  strangers  to  international  law; 
commissions  of  inquiry  were  familiar  in  international  practice 


* See  Vol.  II,  pp.  165  and  533. 


PACIFIC  SETTLEMENT  OP  INTERNATIONAL  DISPUTES  311 


although  adequate  machinery  and  procedure  were  new;  arbi- 
tration was  a favorite  means  of  settling  international  disputes. 
But  adequate  international  machinery,  namely,  an  interna- 
tional court  for  prospective  litigation  was  lacking.  Public 
opinion  had  demanded  it  for  years  and  many  projects  had 
been  drafted  and  urged  for  generations.  The  great  book  of 
Kamarowski,  the  project  of  the  Interparliamentary  Union 
elaborated  at  its  Brussels  session  in  1895,  and  M.  Descamps’ 
address  commending  it  to  the  powers,  drawn  up  at  the  instance 
of  the  Union,  were  as  familiar  to  students  of  International  Law 
as  to  the  pacifists,  and  public  opinion  was  not  only  ripe  but 
insistent. 

Through  the  open  windows  of  the  House  in  the  Woods  the 
voice  entered  and  from  the  House  the  permanent  court  sprang 
like  Minerva  fully  armed  from  the  head  of  Jove.  Such  is  the 
theory;  quite  other  is  the  fact.  A permanent  panel  of  judges 
was  created  from  which  litigant  nations  could  select  the  five 
judges  forming  a temporary  tribunal  for  the  trial  of  a particu- 
lar case.  No  permanent  court  was  created,  and  the  nations 
were  as  free  after  as  before  the  Conference  to  appoint  mixed 
commissions  or  to  select  judges  of  their  own  choice.  But  the 
fact  remains  that  the  creation  of  a permanent  panel,  from 
which  capable  and  upright  judges  might  be  selected  possessing 
the  stamp  of  their  country’s  approval,  did  provide  a permanent 
personnel  for  the  temporary  tribunal,  and  the  idea,  although 
erroneous,  that  a permanent  court  actually  was  created  by  the 
Conference  has  perhaps  done  more  to  advance  the  cause  of 
arbitration  than  any  other  single  act  in  the  world’s  history.  A 
permanent  court  will  be  constituted  at  no  distant  date,  and 
the  so-called  permanent  court  will  be  the  point  of  departure. 

Germany’s  objection  to  the  project  seems  to  have  been  that 
its  establishment  would  reflect  upon  German  sovereignty, 
because  Germany  could  not  be  a party  to  a court  for  the  trial 
of  German  cases  before  other  than  German  judges  or  judges 
approved  by  Germany.  The  answer  to  this  objection  is  that 
freedom  to  accept  or  reject  recognizes  sovereignty,  | and  the 
consent  to  the  establishment  of  a tribunal  is  itself  an  act  of 


312 


THE  HAGUE  PEACE  CONFEEENCE8 


sovereignty  and  the  most  signal  recognition  of  its  exist- 
ence. 

The  objections  of  Germany  were  overcome  and  the  court  was 
established  by  universal  consent,  without  a single  dissenting 
voice  and  amid  rejoicing  and  enthusiasm. 

As  previously  shown  the  resort  to  the  court  is  voluntary, 
and,  as  in  the  matter  of  general  arbitration  so  in  the  case  of 
the  court,  Germany  has  accepted  the  principle  in  practice  as 
well  as  in  theory. 

5.  The  First  Four  Cases  Decided  by  the  Permanent 

Court 

The  efficiency  of  the  Permanent  Court  has  been  tested  four 
times,  and  the  temporary  tribunal  has  each  time  justified  its 
existence  and  reflected  credit  upon  the  Convention  of  1899. 
It  is  a source  of  pride  that  the  Republics  of  the  New  World 
supplied  the  first  case,  and  called  into  being  for  the  first  time 
the  means  whereby  little  by  little  the  judicial  settlement  of 
international  conflicts  will  replace  the  judicial  combat  of 
nations. 

The  case  on  trial  was  known  as  the  “Pious  Fund  of  the  Cali- 
fornias.”  It  originated  in  donations  made  by  Spanish  sub- 
jects during  the  latter  part  of  the  seventeenth  and  the  first  half  of 
the  eighteenth  centuries  for  the  spread  of  the  Roman  Catholic 
faith  in  the  Californias.  These  gifts  amounting  approximately 
to  $1,700,000,  were  made  in  trust  to  the  Society  of  Jesus  for 
the  execution  of  the  pious  wish  of  the  founders.  The  Jesuits 
accepted  the  trust  and  discharged  its  duties  until  they  were  dis- 
abled from  its  further  administration  by  their  expulsion  in  1767 
from  the  Spanish  dominions  by  the  King  of  Spain  and  by  the 
suppression  of  the  order  by  the  Pope  in  1773.  The  Crown  of 
Spain  took  possession  of  and  administered  the  trust  for  the  uses 
declared  by  the  donors  until  Mexico,  after  her  independence 
was  achieved,  succeeded  to  the  administration  of  the  trust. 
Finally,  in  1842,  President  Santa  Anna  ordered  the  properties 
to  be  sold,  that  the  proceeds  thereof  be  incorporated  into  the 
national  treasury,  and  that  6 per  cent  annual  interest  on  the 
capitalization  of  the  property  should  be  paid  and  devoted  to  the 
carrying  out  of  the  intention  of  the  donors  in  the  conversion 
and  civilization  of  the  savages. 


PACIFIC  SETTLEMENT  OP  INTERNATIONAL  DISPUTES  313 


Upper  California  having  been  ceded  to  the  United  States  in 
1848  by  the  treaty  of  Guadalupe  Hidalgo,  the  Mexican  govern- 
ment refused  to  pay  to  the  prelates  of  the  Church  in  Upper  Cali- 
fornia any  share  of  the  interest  which  accrued  after  the  ratifica- 
tion of  the  treaty.  The  latter  presented  their  claims  therefor 
to  the  Department  of  State  and  requested  the  interposition  of 
the  government.  A mixed  commission  for  the  settlement  of 
the  cross  claims  between  the  two  governments  was  formed  under 
the  Convention  of  July  4,  1869.  On  the  presentation  and  hear- 
ing of  the  claim  the  United  States  and  Mexican  commissioners 
divided  in  opinion.  The  case  was  accordingly  referred  to  the 
umpire,  Sir  Edward  Thornton,  who  rendered  an  award  in  favor 
of  the  Urdted  States  for  twenty-one  annuities  of  $43,050.99 
each  as  the  equitable  proportion  to  which  the  prelates  of  Upper 
Cahfornia  were  entitled  of  the  interest  accrued  on  the  entire 
fund  from  the  making  of  the  treaty  of  peace  down  to  February  2, 
1869.  The  Mexican  government  paid  the  award,  but,  asserting 
that  the  claim  was  extinguished,  refused  to  make  any  further  pay- 
ments of  interest  for  the  benefit  of  the  Church  in  Upper  Cali- 
fornia. Again  the  prelates  appealed  to  the  Department  of 
State  for  support,  and  in  1898  active  diplomatic  discussions 
between  the  two  governments  as  to  the  merits  of  the  claim 
were  begun  and  carried  forward  until  they  culminated  in  a 
formal  agreement  to  refer  the  case  to  the  determination  of  The 
Hague  Tribunal.  Only  two  issues  were  presented  by  the  pro- 
tocol, namely: 

1.  Is  the  case,  as  a consequence  of  the  decision  of  Sir  Edward 
Thornton,  within  the  governing  principle  of  res  judicata? 

2.  If  not,  is  the  claim  just? 

And  the  court  was  authorized  to  render  whatever  judgment 
might  be  found  just  and  equitable. ‘ 

As  judges  the  United  States  selected  Professor  de  Martens 
of  Russia  and  Sir  Edward  Fry  of  Great  Britain;  Mexico  chose 
Dr.  Asser  and  M.  Savornin-Lohman  of  Holland,  and  they 
selected  as  President  of  the  Court,  Dr.  Matzen  of  Denmark — 
all  members  of  the  Permanent  Court. 

The  agent  for  the  United  States  was  Jackson  H.  Ralston, 
Esq.,  Washington,  D.  C.,  and  WHliam  L.  Penfield,  Esq., 
Solicitor  for  the  Department  of  State,  from  whom  the  state- 
ment of  the  cases  is  taken,  was  of  counsel. 

* William  L.  Penfield’s  Hague  Court  in  the  Pious  Fund  Arbitration,  Re- 
port of  the  Lake  Mohonk  Conference  on  International  Arbitration  (1903), 
pp.  83-84. 


314 


THE  HAGUE  PEACE  CONFERENCES 


The  material  part  of  the  unanimous  award  of  the  court  in 
favor  of  the  United  States  was  as  follows: 

1.  That  the  said  claim  of  the  United  States  of  America  for  the 
benefit  of  the  Archbishop  of  San  Francisco  and  of  the  Bishop  of 
Monterey  is  governed  by  the  principle  of  res  judicata  by  virtue 
of  the  arbitral  sentence  of  Sir  Edward  Thornton,  of  November 
11,  1875;  amended  by  him  October  24,  1876. 

2.  That  conformably  to  this  arbitral  sentence,  the  Govern- 
ment of  the  Republic  of  the  United  Mexican  States  must  pay 
to  the  Government  of  the  United  States  of  America  the  sum  of 
$1,420,682.67  Mexican,  in  money  having  legal  currency  in 
Mexico,  within  the  period  fixed  by  Article  10  of  the  protocol  of 
Washington  of  May  22,  1902. 

This  sum  of  $1,420,  682.67  will  totally  extinguish  the  annuities 
accrued  and  not  paid  by  the  government  of  the  Mexican  Repub- 
lic— that  is  to  say,  the  annuity  of  $43,050.99  Mexican  from 
February  2,  1869,  to  February  2,  1902. 

3.  The  Government  of  the  Republic  of  the  United  Mexican 
States  shall  pay  to  the  Government  of  the  United  States  of 
America  on  February  2,  1903,  and  each  following  year  on  the 
same  date  of  February  2,  perpetually,  the  annuity  of  $43,050.99 
Mexican,  in  money  having  legal  currency  in  Mexico.^ 

The  action  of  the  United  States  and  Mexico  saved  the  court, 
and  in  view  of  this  the  establishment  of  the  important  princi- 
ple of  res  judicata  in  public  law  sinks  into  insignificance. 

The  second  case  has  an  importance  of  its  own  irrespective  of 
the  decision  of  the  court,  for  Europe  and  Asia,  represented 
respectively  by  Germany,  France,  Great  Britain,  and  Japan, 
appealed  to  the  court  for  the  settlement  of  an  international 
difficulty.  The  decision,  concerning  the  question  of  perpetual 
leases  of  the  European  powers  in  the  several  foreign  settle- 
ments of  Japan  incorporated  with  the  respective  Japanese 
communes,  was  as  follows: 

The  provisions  of  the  treaties  and  other  engagements  men- 
tioned in  the  arbitration  protocols  not  only  exempt  the  lands 
held  by  virtue  of  the  perpetual  leases  granted  by  the  Japanese 
Government  or  in  its  name,  but  they  exempt  the  lands  and  the 
buildings  of  every  nature  constructed  or  which  may  be  con- 

* Foreign  Relations  of  the  United  States,  1902,  Appendix  II,  18.  For 
the  protocol  and  text  of  the  award,  see  American  Journal  of  International 
Law  (1908),  Vol.  II,  pp.  893-902. 


PACIFIC  SETTLEMENT  OP  INTERNATIONAL  DISPUTES  315 


structed  on  these  lands  from  all  imposts,  taxes,  charges,  con- 
tributions or  conditions  whatsoever  other  than  those  expressly 
stipulated  in  the  leases  in  question.* 

The  judges  of  the  court  were  M.  G.  Gram  of  Norway,  umpire, 
M.  Louis  Renault  of  France  representing  the  plaintiffs,  Ger- 
many, France  and  Great  Britain,  and  M.  Motono  the  defend- 
ant Japan. 

The  third  case  was  equally  important  as  it  brought  Europe 
and  America  together  as  plaintiffs  and  defendants.  The  ques- 
tion arose  out  of  the  preferential  treatment  claimed  by 
Germany,  Great  Britain  and  Italy  as  plaintiffs  against  Vene- 
zuela as  defendant,  as  due  them  by  virtue  of  the  protocols  of 
May  7,  1903. 

The  question  as  to  whether  or  not  Germany,  Great  Britain  and 
Italy  are  entitled  to  preferential  or  separate  treatment  in  the 
payment  of  their  claims  against  Venezuela,  and  its  decision  shall 
be  final. 

Venezuela  having  agreed  to  set  aside  30  per  cent  of  the  Cus- 
toms Revenues  of  La  Guayra  and  Puerto  Cabello  for  the  pay- 
ment of  the  claims  of  all  nations  against  Venezuela,  the  Tribunal 
at  The  Hague  shall  decide  how  the  said  revenues  shall  be  divided 
between  the  Blockading  Powers  on  the  one  hand  and  the  other 
Creditor  Powers  on  the  other  hand,  and  its  decision  shall  be 
final. 

If  preferential  or  separate  treatment  is  not  given  to  the 
Blockading  Powers,  the  Tribunal  shall  decide  how  the  said 
revenue  shall  be  distributed  among  all  the  Creditor  Powers, 
and  the  Parties  hereto  agree  that  the  Tribunal,  in  that  case, 
shall  consider,  in  connection  with  the  payment  of  the  claims  out 
of  the  30  per  cent,  any  preference  or  pledges  of  revenues  enjoyed 
by  any  of  the  Creditor  Powers,  and  shall  accordingly  decide  the 
question  of  distribution,  so  that  no  Power  shall  obtain  preferen- 
tial treatment,  and  its  decision  shall  be  final.^ 

The  award  of  the  Judges,  M.  Mouravieff,  umpire,  of  Russia, 

* Official  Report  issued  by  the  Bureau  International  de  la  Cour  Perma- 
nente  d’Arbitrage,  p.  49.  For  the  protocol  and  text  of  the  award,  see 
American  Journal  of  International  Law  (1908),  Vol.  II,  pp.  911-921. 

’ Official  report  issued  by  the  Bureau  International  de  la  Cour  Perma- 
nente  d’Arbitrage,  p.  124-125;  American  Journal  of  International  Law 
(1908),  Vol.  II,  p.  905. 


316 


THE  HAGUE  PEACE  CONFERENCES 


Dr.  Lammasch  of  Austria-Hungary,  and  M.  de  Martens  of 
Russia,  was  as  follows : 

1.  Germany,  Great  Britain  and  Italy  have  a right  to  prefer- 
ential treatment  for  the  payment  of  their  claims  against  Vene- 
zuela; 

2.  Venezuela  having  consented  to  put  aside  30  per  cent  of 
the  revenues  of  the  Customs  of  La  Guayra  and  Puerto  Cabello 
for  the  payment  of  the  claims  of  all  nations  against  Venezuela, 
the  three  above  named  Powers  have  a right  to  preference  in 
the  payment  of  their  claims  by  means  of  these  30  per  cent  of  the 
receipts  of  the  two  Venezuelan  Ports  above  mentioned; 

3.  Each  Party  to  the  litigation  shall  bear  its  own  costs  and 
an  equal  share  of  the  costs  of  the  Tribunal.^ 

This  decision  awarding  a preference  to  the  blockading  powers 
in  the  customs  of  Venezula  has  been  criticised  as  a premium 
on  force  and  war;  but  if  war  is  legal,  and  if  Venezuela  consented 
to  the  preferential  treatment  although  under  pressure  of  war, 
the  decision  seems  good  in  law,  however  questionable  it  may 
be  in  morals. 

The  importance  of  the  decision  as  in  the  previous  case  lies 
beyond  the  immediate  award  because  it  showed  the  great 
powers  that  they  might  safely  submit  their  claims  to  The  Hague, 
and  the  recourse  to  The  Hague  bids  fair  to  ripen  into  a habit. 

The  fourth  and  last  case  arose  out  of  a difference  of  opinion 
between  Great  Britain  and  France  as  to  the  exact  meaning  of 
a declaration,  dated  March  10,  1862,  between  the  litigant 
States  by  which  they  agreed  to  maintain  the  independence 
of  Muscat.  The  exact  difficulty  arose  from  the  issue 

by  the  French  Republic,  to  certain  subjects  of  His  Highness 
the  Sultan  of  Muscat  of  papers  authorizing  them  to  fly  the 
French  flag,  and  also  as  to  the  nature  of  the  privileges  and 
immunities  claimed  by  subjects  of  His  Highness  who  are  owners 
or  masters  of  dhows  and  in  possession  of  such  papers  or  are 
members  of  the  crew  of  such  dhows  and  their  families,  especially 
as  to  the  manner  in  which  such  privileges  and  immunities 


‘ OflScial  report  issued  by  the  Bureau  International  de  la  Cour  Perma- 
nent d’Arbitrage,  p.  128;  American  Journal  of  International  Law  (1908), 
Vol.  II,  pp.  907-911. 


PACIFIC  SETTLEMENT  OF  INTEENATIONAL  DISPUTES  317 


affect  the  jurisdiction  of  His  Highness  the  Sultan  over  his  said 
subjects.* 

By  a protocol  signed  October  13,  1904,  between  Great  Bri- 
tain and  France  it  was  agreed  that  the  questions  arising  from 
the  interpretation  of  the  Declaration  of  March  10,  1862,  should 
be  arbitrated  in  accordance  with  Article  1 of  the  general  treaty 
of  arbitration  concluded  between  the  two  countries  on  October 
14,  1903 — ^the  first  arbitration  treaty  it  may  be  said  in  pursu- 
ance of  Article  19  of  the  convention  for  the  peaceful  settle- 
ment of  international  disputes  (1899). 

The  judges  were  Dr.  Lammasch  of  Austria  Hungary,  umpire. 
Chief  Justice  Fuller,  of  the  United  States,  Savomin-Lohman  of 
Holland.  Tlhe  award  was  unanimous,  holding  that  the  action 
of  France  was  not  in  violation  of  the  territorial  sovereignty,  but 
limiting  the  right  of  France  to  authorize  subjects  of  Muscat 
to  fly  the  French  flag. 

The  award  is  highly  technical  and  devoid  of  general  interest; 
but  is  important  as  a settlement  of  difficulties  arising  out  of 
the  interpretation  of  a treaty.^ 

The  Hague  Tribunal  will  shortly  be  called  into  being  a 
fifth  time,  for  France  and  Germany  have  agreed  to  submit  to 
arbitration  a controversy  caused  by  the  desertion  and  arrest, 
on  September  25,  1908,  of  six  foreigners  from  the  French 
foreign  legion  in  Morocco,  and  the  alleged  improper  assistance 
furnished  them  by  the  German  consul.  The  Tribunal  is  to 
meet  at  the  Hague  on  May  1,  1909,  and  will  be  composed  of 
M.  de  Hammarskjold,  umpire,  and  Messrs.  Fry,  Fusinato, 
Kriege  and  Renault. 

A sixth  case  is  in  preparation,  for  Great  Britain  and  the 
United  States  have  agreed  to  submit  to  arbitration  at  The 
Hague  the  interpretation  of  the  Convention  of  1818  regulating 
fishing  in  Newfoundland  waters. 

' Official  report  issued  by  the  Bureau  International  de  la  Cour  Perma- 
nente  d’Arbitrage,  p.  53;  American  Journal  of  International  Law  (1908), 
Vol.  II,  p.  922. 

’For  text  of  the  award,  see  American  Journal  of  International  Law 
(1908),  Vol.  II,  pp.  923-928. 


318 


THE  HAGUE  PEACE  CONFEEENCES 


The  court  will  pass  upon  this  important  question  in  the 
course  of  the  year  1910,  and  will  be  composed  as  follows: 
Dr.  Heinrich  Lammasch,  of  Austro-Hungary,  umpire;  Dr.  Luis 
M.Drago,  of  Argentine ; Sir  Charles  Fitzpatrick,  of  Great  Brit- 
ain; George  Gray,  of  the  United  States,  and  Savornin  Leh- 
man, of  Holland. 

The  world  is  thus  awakening  to  the  fact  that  there  is  or 
easily  may  be  a court  at  the  Hague,  and  each  case  tried  before 
this  august  tribunal  is  not  only  a tribute  to  the  wisdom  of 
the  First  Hague  Conference  but  evidence  that  the  world  is 
learning  the  alphabet  of  righteousness  and  peace. 


CHAPTER  VII 


COMPULSORY  ARBITRATION  AT  THE  CONFERENCE 
THE  DECLARATION  IN  FAVOR  OF  COMPUL- 
SORY ARBITRATION 

1.  Distinction  Between  Mediation  and  Arbiteation 

At  the  opening  of  the  First  Hague  Conference,  arbitration 
was  a recognized  and  indeed  common  means  of  settling  inter- 
national differences  which  diplomacy  had  failed  to  adjust. 
It  is  not  meant  to  suggest  that  arbitration  as  such  has  proved 
itself  in  the  past  to  be  a substitute  for  war  because  doubtless 
very  few  cases  have  been  submitted  to  arbitration  which,  if 
left  unsettled,  would  in  themselves  have  provoked  war.  It  is, 
however,  safe  to  say  that  if  these  difficulties  had  been  left 
outstanding  they  would  have  been  a source  of  irritation  so  that 
it  would  have  been  easier  for  the  powers  either  to  drift  into 
war,  or,  in  a moment  of  excitement,  rush  to  arms,  if  the  sources 
of  discontent  settled  by  arbitration  had  not  been  eliminated 
from  the  field  of  international  controversy.  It  is  certainly 
within  the  mark  to  say  that  the  Alabama  claims,  involving  as 
they  did  both  vital  interests  and  honor  would,  if  unsettled,  have 
irritated,  perhaps  alienated,  for  many  years  Great  Britain  and 
the  United  States,  and  might  in  a moment  of  excitement  and 
indignation  have  plunged  the  English-speaking  world  into  a 
war  of  unspeakable  horror.  To  have  healed  the  wounds  of  the 
two  nations,  to  have  drawn  them  together  in  friendly  inter- 
course, to  have  prevented,  it  may  be,  war,  would  alone  justify 
the  creation  of  arbitration  even  if  it  had  not  existed  as  a sys- 
tem. The  settlement  of  these  unfortunate  and  embarrassing 
claims  shows  the  possibilities  of  the  system  and  when  public 
opinion  is  insistent  that  international  disputes  be  submitted  to 

319 


320 


THE  HAGUE  PEACE  CONFERENCES 


and  adjusted  by  arbitration,  sovereigns  much  more  than  tax- 
payers will  be  astonished  to  see  how  legal  questions  are  neces- 
sarily involved  in  matters  of  honor  and  so-called  vital  interests. 

Article  8 of  the  second  Russian  Circular  dealt,  it  will  be 
remembered,  with  the  peaceful  settlement  of  international 
conflicts  and  the  consideration  of  this  article  was  entrusted  to 
the  Third  Commission  organized  under  the  presidency  of  M. 
Bourgeois,  first  delegate  of  France,  with  Baron  d’Estoumelles 
de  Constant  as  secretary  and  Baron  Descamps  as  reporter. 
Good  offices  and  mediation  supplement  diplomatic  negotiation 
and  may  succeed  where  diplomacy  has  failed  to  effect  a settle- 
ment between  the  parties  in  conflict.  Still  there  is  a funda- 
mental difference  between  good  offices  and  mediation  on  the 
one  hand  and  arbitration  on  the  other;  because  good  offices 
consist  in  the  desire  to  terminate  a conflict,  mediation  is  at 
most  a cooperation  in  such  settlement,  whereas  arbitration  is  a 
decision  of  the  very  point  in  conflict  by  a stranger  to  the  con- 
troversy. In  other  words,  good  offices  and  mediation  are 
advice,  arbitration  is  a judgment.  The  one  does  not  exclude 
the  other:  arbitration  may  be  a development  of  good  offices 
and  mediation,  and  may  result  directly  from  the  other. 
These  means  of  settling  international  conflicts  are,  however, 
distinct  in  theory  and  practice  and  should  be  so  considered 

These  methods  are  often  discussed  as  if  they  were  practically 
the  same,  but  in  reality  they  are  fundamentally  different. 
Mediation  is  an  advisory,  arbitration  a judicial,  function.  Me- 
diation recommends,  arbitration  decides.  While  nations  might 
for  this  reason  accept  mediation  in  various  cases  in  which  they 
might  be  unwilling  or  reluctant  to  arbitrate,  it  is  also  true  that 
they  have  often  settled  by  arbitration  questions  which  media- 
tion could  not  have  adjusted. 

It  is,  for  example,  hardly  conceivable  that  the  question  of  the 
Alabama  claims  could  have  been  settled  by  mediation.  The 
same  thing  may  be  said  of  many  and  indeed  of  most  of  the  great 
number  of  boundary  disputes  that  have  been  settled  by  arbitra- 
tion. The  importance  of  mediation  as  a form  of  amicable  nego- 
tiation should  not  be  minimized.  The  Congress  of  Paris  of  1856, 
as  well  as  the  Congo  Conference  of  1884,  made  a declaration  in 
favor  of  the  practice  of  mediation;  and  a formal  plan  of  media- 
tion forms  part  of  the  convention  lately  adopted  at  The  Hague 


COMPULSOKY  ARBITRATION  AT  THE  CONFERENCE  321 


for  the  settlement  of  international  disputes.  Nevertheless, 
mediation  is  merely  a diplomatic  function  and  offers  nothing 
new. 

Arbitration,  on  the  contrary,  represents  a principle  as  yet 
only  occasionally  acted  upon,  namely,  the  application  of  law 
and  of  judicial  methods  to  the  determination  of  disputes  between 
nations.  Its  object  is  to  displace  war  between  nations  as  a 
means  of  obtaining  national  redress,  by  the  judgments  of  inter- 
national judicial  tribunals;  just  as  private  war  between  indi- 
viduals, as  a means  of  obtaining  personal  redress,  has,  in  conse- 
quence of  the  development  of  law  and  order  in  civilized  states, 
been  supplanted  by  the  processes  of  municipal  courts.  In  dis- 
cussing the  subject  of  arbitration  we  are  therefore  to  exclude 
from  consideration,  except  as  a means  to  that  end,  mediation, 
good  offices,  or  other  forms  of  negotiation.* 

2.  Compulsory  Arbitration  at  the  First  Peace 
Conference 

The  Russian  government  presented  to  the  First  Conference 
six  articles  which  somewhat  modified  are  the  basis  of  the  title 
of  the  first  convention  dealing  with  good  offices  and  media- 
tion. At  the  same  time  the  Russian  delegation  submitted  a 
series  of  articles  dealing  with  international  arbitration  which 
were  the  subject  of  profound  consideration  and  discussion, 
and  would  have  been  adopted,  albeit  in  modified  form,  had  it 
not  been  for  the  opposition  of  one  great  power — Germany. 
Without  quoting  directly  these  articles  ^ it  may  be  said  that 
they  recognized  arbitration  as  the  most  efficacious  and  most 
equitable  means  of  settling  controversies  of  a legal  nature  and 
especially  controversies  concerning  the  interpretation  and 
application  of  existing  treaties  (Article  7),  in  consequence  of 
which  the  contracting  powers  agree  to  arbitrate  such  questions, 
provided  vital  interest  and  national  honor  of  the  parties  be 
not  involved  (Article  8).  And  in  case  of  such  arbitration, 
each  State  is  the  sole  judge  whether  or  not  the  question  should 
be  submitted  to  arbitration,  except  the  cases  enumerated  in 
the  following  article  and  in  which  the  Signatory  Powers  con- 
sider arbitration  as  obligatory.  (Article  9.)  An  examination 

‘Moore’s  International  Law  Digest,  Vol.  VII,  p.  25. 

‘ For  text  in  full,  see  appendix,  pp.  777-778. 


322 


THE  HAGUE  PEACE  CONPEKENCES 


of  these  three  articles  shows,  therefore,  that  arbitration  is 
recognized  as  the  most  efficacious  and  equitable  means  of 
settling  an  international  dispute,  and  that  the  Powers  agree  to 
resort  to  it  providing  their  vital  interests  and  national  honor 
be  not  involved.  Inasmuch  as  each  power  is  to  decide  whether 
or  not  its  vital  interests  or  national  honor  be  involved,  it 
follows  that  a request  to  arbitrate  may  receive  the  answer 
that  the  vital  interests  and  national  honor  of  the  defendant,  to 
use  a private  law  term,  are  concerned,  and  as  the  defendant 
is  solely  competent  to  pass  upon  this  matter  the  mere  sugges- 
tion of  vital  interest  and  national  honor  by  it  amounts  to  a 
refusal.  It  also  appears  that  even  although  the  Powers  agree 
to  submit  various  questions  to  arbitration  the  plea  of  vital 
interest  or  national  honor  makes  the  submission  voluntary. 
The  Russian  Government,  however,  was  unwilling  to  leave 
matters  as  they  stood,  because  sovereign  and  independent 
nations  may  resort  to  arbitration  whenever  they  desire  with- 
out a general  treaty.  The  partisans  of  arbitration  desired 
to  pledge  the  nations  in  advance  to  arbitration,  and,  while  leav- 
ing them  the  right  to  invoke  vital  interests  or  national  honor, 
to  obtain  their  consent  to  the  arbitration  of  a variety  of  sub- 
jects in  which  vital  interests  or  national  honor  cannot  be  said 
to  be  involved.  In  this  way  the  powers  would  pledge  them- 
selves to  arbitrate  matters  of  law  and  disputes  arising  out  of 
treaties  in  force,  provided  that  in  the  opinion  of  one  of  the 
litigants  its  vital  interest  and  national  honor  be  not  involved. 
This  would  be  a recognition  of  the  efficacy  and  equity  of  arbi- 
tration, and  the  application  of  a principle  even  on  a small  scale 
is  infinitely  better  than  its  mere  recognition  without  application. 
Therefore  the  project  proposed  by  the  Russian  Government, 
however  limited  the  field  of  compulsory  arbitration  might  be, 
marked  a great  progress  in  the  history  of  arbitration  because 
if  accepted  by  the  Conference  it  became  compulsory,  and,  if 
successful  within  its  limited  field,  it  would  have  as  the  inevit- 
able consequence  the  renunciation  of  the  reserves  of  vital  inter- 
est and  national  honor  in  the  overwhelming  majority  of  cases, 
if  not  in  all. 


COMPULSORY  ARBITRATION  AT  THE  CONFERENCE  323 


By  reason  of  its  importance  Article  10  of  the  Russian  proj- 
ect is  set  forth  at  length: 

From  and  after  the  ratification  of  the  present  treaty  by 
all  the  Signatory  Powers,  arbitration  shall  be  obligatory  in 
the  following  cases,  so  far  as  they  do  not  affect  vital  interests 
or  the  national  honor  of  the  contracting  States : 

I.  In  the  case  of  differences  or  conflicts  regarding  pecuniary 
damages  suffered  by  a State  or  its  citizens,  in  consequence  of 
illegal  or  negligent  action  on  the  part  of  any  State  or  the  citizens 
of  the  latter. 

II.  In  the  case  of  disagreements  or  conflicts  regarding  the 
interpretation  or  application  of  treaties  or  conventions  upon 
the  following  subjects: 

1.  Treaties  concerning  postal  and  telegraphic  service 
and  railways,  as  well  as  those  having  for  their  object  the  pro- 
tection of  submarine  telegraphic  cables;  rules  concerning  the 
means  of  preventing  collisions  on  the  high  seas;  conventions 
concerning  the  navigation  of  international  rivers  and  inter- 
oceanic  canals. 

2.  Conventions  concerning  the  protection  of  literary 
and  artistic  property,  as  well  as  industrial  and  proprietary 
rights  (patents,  trademarks,  and  commercial  names);  conven- 
tions regarding  monetary  affairs,  weights,  and  measures;  con- 
ventions regarding  sanitary  affairs  and  veterinary  precautions 
and  measures  against  the  phylloxera. 

3.  Conventions  regarding  inheritances,  extradition,  and 
mutual  juridical  assistance. 

4.  Boundary  conventions  or  treaties,  so  far  as  they  con- 
cern purely  technical,  and  not  political,  questions. 

But,  however  sweeping  Article  10  might  seem,  the  Russian 
delegation  evidently  regarded  it  as  a first  step,  because  the 
next  article  provided  that  the  cases  mentioned  might  be  enlarged 
by  subsequent  agreement  between  the  signatories  of  the  present 
act.  (Article  11.)  Lest  there  be  any  mistake  as  to  the  nature 
and  extent  of  the  obligation  assumed  by  the  Powers,  Article  12 
of  the  Russian  proposal  stated  clearly  and  distinctly  that, 
while  it  was  desirable,  and  indeed  recommended  by  the  present 
act,  all  other  international  conflicts  not  specifically  men- 
tioned in  Article  10  be  submitted  to  arbitration,  the  resort  to 
it,  except  in  the  specified  cases,  was  to  be  voluntary  and  only 
to  result  from  the  free  and  untrammeled  consent  of  the  par- 
ties in  controversy.  These  proposals  were  enforced  by  a long 


324 


THE  HAGUE  PEACE  CONFERENCES 


and  careful  memorandum  presented  by  the  Russian  govern- 
ment, in  which  the  subject  of  arbitration  was  examined  with 
great  care  and  in  great  detail  d 

It  should  be  said  before  passing  to  the  detailed  examina- 
tion of  Article  10  that  the  Russian  delegation  considered  it 
necessary  to  codify,  in  the  light  of  experience  as  well  as  of 
theory,  the  rules  and  regulations  of  arbitral  procedure,  and  it 
should  also  be  mentioned  that  Sir  Julian  Pauncefote  presented 
a project  for  the  establishment  of  a permanent  tribunal  so  that 
the  recourse  to  arbitration  might  be  facilitated.  The  articles 
of  procedure  presented  by  the  Russian  Government  as  well  as 
Sir  Julian  Pauncefote’s  plan  for  the  establishment  of  a per- 
manent court  served  as  the  basis  of  the  discussion,  and,  in 
modified  form,  were  adopted,  so  that  arbitration  was  given  not 
merely  a code  of  procedure  but  a tribimal  in  which  the  con- 
troversy when  presented  might  be  decided  in  accordance  with 
law. 

But  to  return  to  the  project  of  arbitration  presented  by  the 
Russian  delegation.  The  declaration  in  favor  of  arbitration 
as  the  most  efficacious  and  equitable  method  of  settling  inter- 
national difficulties  was  accepted  with  but  slight  modifica- 
tion and  no  discussion.  Article  8 reserving  from  arbitration 
vital  interests  and  national  honor  was  subjected  to  examina- 
tion, and  in  reply  to  Mr.  Asser,  who  questioned  the  advisability 
of  the  reservation.  Dr.  Zom  stated  on  behalf  of  Germany 
that  he  attached  the  greatest  importance  to  the  retention  of 
this  phrase;  that  it  constituted  in  his  eyes  an  essential  guaran- 
tee, a condition  indispensable  to  the  adherence  of  his  govern- 
ment to  the  decisions  of  the  Conference.  As  a result  of  this 
declaration  the  reservations  were  maintained  without  further 
discussion. 

Article  9,  providing  that  the  State  in  controversy  is  solely 
authorized  to  decide  whether  honor  or  vital  interests  be 
involved,  was  accepted  with  a slight  verbal  modification.  The 
controversy  centered  about  Article  10  which  sought  to  make 

* For  the  text  in  full,  see  Appendix,  pp.  800-807. 


COMPULSOEY  AEBITKATION  AT  THE  CONFERENCE  325 


arbitration  compulsory  in  certain  clearly  defined  categories, 
even  although  the  States  retained  the  right  to  plead  vital 
interests  or  national  honor.  In  regard  to  section  1 concern- 
ing pecuniary  damages  Sir  Julian  Pauncefote  proposed  that 
the  balance  of  the  article  be  omitted  after  the  words  “pecu- 
niary damage,”  which  motion  was  agreed  to  and  the  section  as 
thus  amended  was  unanimously  adopted.  Section  2 dealt  with 
controversies  arising  from  the  interpretation  or  application  of 
treaties  and  conventions  mentioned  in  the  four  succeeding 
sections.  In  the  first  paragraph,  Mr.  Holls  objected  to  com- 
pulsory arbitration  of  conventions  relating  to  the  navigation 
of  international  rivers  and  interoceanic  canals,  and  after 
some  discussion  the  paragraph  was  suppressed.  As  amended 
by  Mr.  Holls  and  modified  in  other  unessential  particulars  the 
paragraph  was  adopted.  Equally  upon  the  motion  of  Mr. 
Holls,  monetary  conventions  were  eliminated  from  paragraph 
2.  With  these  modifications  Article  10  was  approved  in  first 
reading  not  merely  in  principle  but  as  actually  drafted.^ 
At  a subsequent  meeting,  the  committee  of  examination 
decided  to  modify  section  1,  so  that  the  question  of  liability  of 
a government  to  damages  would  not  be  submitted  to  compul- 
sory arbitration.  In  other  words,  arbitration  would  only  be 
compulsory  for  the  amount  of  the  indemnity  when  the  powers 
in  controversy  had  admitted  liability.  As  modified  in  this 
sense  section  1 was  adopted.  Other  changes  of  importance 
were  suggested  and  the  principle  of  Article  10  remained  intact 
until  the  14th  session  of  the  Committee  of  Examination  held 
on  July  4,  1899.  A brief  extract  from  the  official  minutes  of 
that  date  will  suffice  to  show  the  origin  and  nature  of  the  opposi- 
tion that  proved  fatal  to  compulsory  arbitration  at  the  First 
Conference. 

Dr.  Zorn  proposes  the  suppression  of  Articles  9 and  10. 
The  German  Government  is  not  in  a position  to  accept  com- 
pulsory arbitration.  It  admits  that  all  existing  Conventions 
in  which  arbitration  is  provided  shall  of  course  continue  in 

* Conference  Internationale  de  la  Paix,  1899,  part  IV,  Comit6  d’Examen, 

pp.  10-12. 


326 


THE  HAGUE  PEACE  CONFERENCES 


force,  for  example,  the  Universal  Postal  Conventions,  the  Con- 
ventions relative  to  Railway  transportations,  the  Mutual  Con- 
ventions, etc. 

The  principle  of  compulsory  arbitration  shall  be  maintained 
in  all  cases  when  already  adopted  by  special  conventions.  But 
Germany  can  go  no  farther  and  believes  she  has  already  done 
much  by  accepting  the  list  of  arbitrators  and  the  Permanent 
Court. 

Dr.  Zorn  hopes  that  unanimity  which  has  so  happily  pre- 
vailed heretofore  in  the  decisions  of  the  committee  shall  not 
come  to  an  end  and  that  the  great  concessions  previously  made 
by  him  will  be  taken  into  account.  He  therefore  suggests  that 
the  adopted  wording  be  such  as  to  afford  equal  preservation  to 
the  future  and  the  existing  conventions.  ‘ 

As  a result  of  much  discussion  Article  10  was  abandoned, 
a draft  proposed  by  M.  Descamps  was  ultimately  adopted  and 
figures  as  Article  19  in  the  convention  for  the  peaceful  set- 
tlement of  international  disputes.  This  article  which  has  unex- 
pectedly been  at  once  the  source  and  cause  of  many  treaties 
of  arbitration  is  as  follows; 

Independently  of  general  or  private  treaties  expressly  stip- 
ulating recourse  to  arbitration  as  obligatory  on  the  Signa- 
tory Powers,  these  Powers  reserve  to  themselves  the  right  of 
concluding,  either  before  the  ratification  of  the  present  Act 
or  later,  new  Agreements,  general  or  private,  with  a view  to 
extending  obligatory  arbitration  to  all  cases  which  they  may 
consider  it  possible  to  submit  to  it.^ 

The  partisans  of  obligatory  arbitration  were,  however,  un- 
willing to  accept  the  compromise  without  a statement  of 
their  position.  It  was  therefore  decided  that  Article  10  as 
finally  drawn  up  should  be  retained  in  the  minutes  and  men- 
tioned in  the  report  of  the  committee  as  expressing  the  opinion 
of  the  majority.  Dr.  Zom  admitted  the  right  of  each  mem- 
ber to  record  his  vote  and  added  that  he  would  be  satis- 
fied with  a statement  in  M.  Descamps’  report  to  the  Conference 
that 

* Conference  Internationale  de  la  Paix,  1899,  part  IV,  Comite  d’Ex- 
amen,  p.  56. 

^ Ibid.,  p.  56.  The  14th  session  of  the  Comite  d’Examen  was  devoted  to 
the  consideration  of  this  interesting  question  (pp.  55-59). 


COMPULSOEY  ARBITKATION  AT  THE  CONFEKENCE  327 


many  members  of  the  committee,  although  favorable  to  the 
principle  of  obligatory  arbitration,  abandoned  it  in  order  to 
reach  an  accord. 

The  elimination  of  Article  10  would  naturally  affect  the  other 
articles  of  the  Russian  project  because  they  were  presented  as 
a unit  and  depended  upon  the  acceptance  of  Article  10.  There- 
fore there  would  remain  only  Article  7 proclaiming  arbitra- 
tion to  be  the  most  efficacious  and  equitable  means  for  the 
settlement  of  international  difficulties,  and  the  compromise 
article,  reserving  to  the  powers  the  right  to  conclude  either 
before  or  after  the  ratification  of  the  present  act  or  subse- 
quently thereto  general  or  particular  treaties  enlarging  the 
domain  of  international  arbitration.  Article  10,  as  drafted 
and  accepted  by  the  committee,  before  Dr.  Zorn’s  refusal  on 
the  part  of  Germany  to  accept  it  is  as  follows: 

Arbitration  is  compulsory  among  the  high  contracting  parties 
in  the  following  cases,  in  so  far  as  they  do  not  affect  the  vital 
interests  or  the  national  honor,  of  the  nations  in  controversy: 

I.  Cases  of  disputes  concerning  the  interpretation  or  appli- 
cation of  the  following  named  conventions: 

1.  Postal,  telegraph  and  telephone  conventions. 

2.  Conventions  concerning  the  protection  of  submarine 
cables. 

3.  Conventions  concerning  railroads. 

4.  Conventions  and  regulations  concerning  the  means  of 
preventing  collisions  of  ships  at  sea. 

5.  Conventions  concerning  the  protection  of  hterary  and 
artistic  property. 

6.  Conventions  concerning  the  protection  of  industrial  prop- 
erty (patents,  trade-marks,  and  brands). 

7.  Conventions  concerning  the  system  of  weights  and 
measures. 

8.  Conventions  concerning  reciprocal  gratuitous  assistance 
of  indigent  sick. 

9.  Sanitary  conventions,  conventions  concerning  epizooties, 
the  phylloxera,  and  other  similar  scourges. 

10.  Conventions  concerning  civil  procedure. 

11.  Extradition  conventions. 

12.  Boundary  conventions  in  so  far  as  they  do  not  refer  to 
purely  technical  and  non-political  questions. 

II.  Cases  of  disputes  concerning  pecuniary  claims  on  account 
of  injuries,  when  the  principle  of  indemnity  is  recognized  by  the 
parties. 


328 


THE  HAGUE  PEACE  CONFERENCES 


Opinions  may  well  vary  as  to  the  value  of  this  article.  Coimt 
Nigra,  an  enthusiast  of  obligatory  arbitration,  stated  that  the 
cases  of  compulsory  arbitration  of  Article  10  were  in  his  eyes 
so  miserable  that  it  was  not  worth  the  trouble  to  talk  of 
them,  and  that  he  would  reject  the  enumeration  as  wholly 
insufficient.  Mr.  Holls  also  believed  that  the  enumerated 
cases  were  of  little  importance.  The  president,  M.  Bourgeois, 
on  the  contrary  believed  them  to  be  fundamental  in  the  sense 
that  they  recognized  not  merely  obligatory  arbitration  in 
the  abstract  but  in  the  concrete. 

It  is  difficult  to  reach  a conclusion  on  this  point,  although 
the  view  of  M.  Bourgeois  seems  correct  in  itself  and  was 
approved  by  the  overwhelming  majority  in  the  Second  Con- 
ference. It  is  a fact  that  the  cases  enumerated  in  Article  10 
were  not  of  the  kind  likely  to  produce  war  and  a settlement  by 
arbitration  was  thus  unlikely  to  preserve  peace;  but  the  sub- 
mission of  difficulties  arising  out  of  them  to  international 
arbitration  would  advance  the  cause  of  arbitration  and  thus 
make  it  more  nearly  and  more  worthy  as  a substitute  for  war. 
If  nations  contract  the  habit  of  resorting  to  arbitration, 
whether  the  difl&culty  be  large  or  small,  it  is  to  be  hoped  that 
its  results  may  so  far  justify  themselves  as  to  render  a resort 
to  arms  more  difficult  if  not  more  impracticable. 

The  defeat  of  compulsory  arbitration  in  1899,  for  it  was  a 
defeat,  presaged  an  unexpected  victory  for  the  partisans  of 
arbitration,  who,  taking  advantage  of  both  the  letter  and  the 
spirit  of  Article  19,  entered  into  negotiations  which  have  firmly 
established  arbitration  as  a certain  and  ready  means  of  settling 
an  international  dispute  before  it  reaches  an  acute  stage  or 
generates  war-like  feeling.  France  and  Great  Britain  were 
pioneers  in  the  movement,  and  the  treaty  of  arbitration  con- 
cluded by  them  on  October  14,  1903,  has  served  as  the  model 
of  numerous  subsequent  treaties.  It  will  be  noted  that  the 
treaty  states  first,  that  the  French  republic  and  Great  Britain 
were  Signatory  Powers  of  the  convention  for  the  pacific  settle- 
ment of  international  disputes  concluded  at  The  Hague  July 
29,  1899 ; second,  that  by  reason  of  Article  19  of  this  conven- 


COMPULSOEY  ARBITRATION  AT  THE  CONFERENCE  329 

tion,  the  signatories  reserve  to  themselves  the  conclusion  of 
agreements  in  view  of  a recourse  to  arbitration  in  all  cases 
which  they  judge  capable  of  submission  to  it.  The  treaty 
therefore  is  not  merely  the  direct  outcome  of  the  First  Confer- 
ence, but  it  is  the  first  fruit  of  the  compromise  Article  19. 

It  will  be  further  noted,  and  it  is  to  this  fact  that  the  treaty 
owes  its  importance,  that  arbitration  is  regarded  as  compul- 
sory, for  France  and  Great  Britain  agree  specifically  that 

differences  of  a judicial  order,  or  relative  to  the  interpretation 
of  existing  treaties  between  the  two  contracting  parties,  which 
may  arise,  and  which  it  may  not  have  been  possible  to  settle 
by  diplomacy,  shall  be  submitted  to  the  Permanent  Court  of 
Arbitration  established  by  the  convention  of  July  29,  1899,  at 
The  Hague,  on  condition,  however,  that  neither  the  vital  in- 
terests nor  the  independence  or  honor  of  the  two  contracting 
States,  nor  the  interest  of  any  State  other  than  the  two  con- 
tracting States  are  involved. 

By  submitting  the  Muscat  controversy  to  arbitration  under 
the  provisions  of  this  treaty,  France  and  Great  Britain  evi- 
denced at  once  good  faith  and  a belief  in  the  efficacy  of  arbitra- 
tion. 

It  will  be  observed  that  the  domain  of  arbitration  is  very 
broad  although  limited  by  vital  interests,  independence  and 
a new-comer,  honor.  It  does  not,  however,  follow  that  France 
and  Great  Britain  exclude  from  arbitration  questions  involv- 
ing vital  interests,  independence  or  honor,  but  they  do  not  by 
the  Treaty  of  October  14,  1903,  enter  into  a present  agreement 
to  submit  questions  of  that  kind  to  arbitration.  If  they  do 
not  agree,  they  do  not  refuse;  they  leave  the  question  open 
for  subsequent  consideration,  and  it  is  to  be  hoped  that  when 
an  acute  controversy  arises  between  the  Powers  they  will 
follow  the  reasonable  example  of  Great  Britain  and  the  United 
States  in  submitting  the  Alabama  claims  to  arbitration,  claims 
which  certainly  involved  the  vital  interests  and  the  “honor”  of 
the  two  countries,  whatever  this  latter  term  may  mean  in  public 
law.  It  will  further  appear  from  an  examination  of  the  treaty, 
that  Article  2 specified  the  necessary  preliminaries  of  arbitra- 
tion, such  as  the 


330 


THE  HAGUE  PEACE  CONFERENCES 


special  undertaking  determining  clearly  the  subject  of  dispute 
(compromis) , the  extent  of  the  arbitral  powers,  and  the  details  to 
be  observed  in  the  constitution  of  the  arbitral  tribunal  and  the 
procedure. 

And,  finally,  by  Article  3,  the  treaty  is  limited  to  five  years 
from  the  date  of  signature. ‘ 

3.  Compulsory  Arbitration  at  the  Second  Conference 

The  subject  of  arbitration  made  its  formal  appearance  at 
the  very  opening  of  the  Second  Hague  Conference,  and  the 
experience  of  the  last  few  years,  together  with  the  participa- 
tion of  Latin  America,  convinced  partisans  of  arbitration^  that 
a general  treaty  of  compulsory  arbitration,  with  the  reserves 
of  independence,  vital  interests  and  honor,  would  be  included 
in  the  Final  Act  of  the  Conference.  An  objection  advanced  by 
Germany  in  1899  was  that  arbitration  had  not  made  sufficient 
progress  and  was  not  sufficiently  understood  in  order  to  be 
adopted  as  a compulsory  means  of  settling  international  dis- 
putes. The  fact,  however,  that  many  nations  had  entered 
into  general  treaties  of  arbitration;  that  Germany  itself  had 
negotiated  one  treaty  with  Great  Britain  and  another  with  the 
United  States  (although  the  latter  was  unfortunately  not 
ratified  by  the  Senate),  added  to  the  fact  that  the  permanent 
court  of  arbitration  had  decided,  amid  general  approval, 
four  cases  presented  to  it,  in  two  of  which  Germany  w^as  a 
suitor,  led  to  the  reasonable  belief  that,  as  Germany  had  found 
the  Permanent  Court  serviceable,  it  would  confess  its  mistake 
of  1899  not  only  by  accepting  the  principle  of  compulsory 
arbitration,  but  by  negotiating  a general  treaty  at  the  Second 
Conference.  Had  not  Dr.  Zorn,  Germany’s  worthy  represen- 
tative in  1899  and  a delegate  to  the  Second  Conference, 

' See  Appendix,  pp.  807-814,  for  enumeration  of  the  arbitration  treaties 
concluded  since  1899  in  reliance  upon  Article  19,  and  an  analysis  of  the 
various  forms  in  which  the  compromis  appears. 

“See  Arbitration  in  Latin- America  (1907),  a convenient  and  valuable 
little  book  published  during  the  session  of  the  Second  Hague  Conference, 
by  Gonzalo  De  Quesada,  delegate  from  Cuba,  and  dedicated  to  the  Presi- 
dent and  members  of  the  Conference. 


COMPULSORY  ARBITRATION  AT  THE  CONFERENCE  331 


expressed  himself  in  an  article  published  in  the  Deutsche  Revue 
for  November,  1906,  in  favor  of  compulsory  arbitration? 

The  various  categories  (of  Article  10  of  the  Russian  pro- 
posal) were  entirely  unpolitical.  They  formed  the  subject  of 
a long  and  interesting  discussion,  and  the  vote  was  unani- 
mous for  a group  of  subjects  to  be  submitted  to  compulsory 
arbitration  (see  the  enumeration  in  the  official  protocol, 
Vol.  IV,  pages  113,  et  seq.)  and  that  a new  Hague  Conference 
would  return  to  this  subject  is  very  probable.  The  question 
is  also  sufficiently  understood  to  reach  a decision,  and,  as  far 
as  the  view  of  the  uninitiated  is  concerned,  there  appears  to  he 
no  reason  why  Germany  should  maintain  its  former  opposition 
to  the  subject.  In  special  treaties  this  opposition  has  already  been 
renounced  on  the  part  of  Germany.^ 

In  addition  to  the  experience  of  recent  years,  attention  is 
called  to  a previous  paragraph  where  the  importance  of  Latin- 
America  at  the  Conference  is  mentioned.  The  reason  for  this 
is  at  once  apparent  when  it  is  recalled  that  Latin-America 
has  at  all  times  and  with  singular  unanimity  expressed  itself 
in  numerous  special  treaties  and  in  general  treaties,  concluded 
at  important  conferences,  in  favor  of  arbitration  as  a means 
of  settling  international  difficulties.  For  example,  in  the 
first  Pan-American  Conference  of  1889-1890,  held  at  Washing- 
ton, a very  careful  treaty  of  arbitration  was  signed  by  the 
conference,  although  it  failed  of  ratification  by  the  contracting 
States.*  At  the  second  Pan-American  Conference,  held  in 
the  City  of  Mexico  (1901-1902),  a treaty  for  the  arbitration 
of  pecuniary  claims  was  drawn  up  and  has  been  ratified  by  a 

‘ Deutsche  Revue,  November,  1906,  p.  144. 

^ For  an  accoimt  of  the  First  Pan-American  Conference,  see  Quesada’s 
Arbitration  in  Latin-America,  pp.  15-43. 

In  his  farewell  address  to  the  Conference  Mr.  Blaine  said:  “If  in  this 
closing  hour,  the  Conference  had  but  one  deed  to  celebrate,  we  should 
dare  call  the  world’s  attention  to  the  deliberate,  confident,  solemn  dedica- 
tion of  two  great  Continents  to  peace,  and  to  prosperity  which  has  the 
peace  for  its  foundation.  We  hold  up  this  new  Magna  Charta,  which  abol- 
ishes war  and  institutes  arbitration  between  the  American  Republics,  as 
the  first  and  great  fruit  of  the  International  American  Conference.” — Offi- 
cial report  of  the  International  American  Conference,  Vol.  II,  p.  1167;  Que- 
sada,  loc.  cit.,  p.  37. 


332 


THE  HAGUE  PEACE  CONFERENCES 


number  of  Powers,  including  the  United  States;^  in  1906  the 
third  Pan-American  Conference,  held  at  Rio  de  Janeiro, 
reaffirmed  and  urged  the  ratification  of  the  treaty  of  pecuniary 
claims  drafted  by  the  preceding  Conference  at  Mexico,  and  the 
Mexican  delegate  was  instructed  to  present  the  treaty  of 
pecuniary  claims  to  the  Second  Hague  Conference  for  its  con- 
sideration. It  is  therefore  sufficiently  clear  why  the  pres- 
ence of  Latin-America  bode  well  for  the  cause  of  arbitration. 
Because  Pan-America  as  a unit  was  pledged  to  the  cause, 
it  was  felt  that  the  great  moral,  as  well  as  numerical  sup- 
port which  arbitration  would  thus  receive  might  well  turn 
the  scales  in  its  favor. 

In  his  address  on  June  22,  1907,  opening  the  proceedings  of 
the  first  commission,  M.  Bourgeois  called  attention  to  the  prog- 
ress made  in  arbitration  since  the  first  conference,  stating  that 
33  treaties  of  arbitration  had  been  concluded  between  the 
Signatory  Powers,  and  expressed  the  hope  that  the  Conference 
might  be  able  to  frame  and  adopt  a general  treaty  of  obligatory 
arbitration  of  a less  pronounced  type  than  those  concluded 
between  several  of  the  contracting  States. 

He  quoted  Dr.  Zorn’s  statement  of  1899 

when  the  permanent  court  is  established  and  in  working  order, 
the  opportune  moment  will  come  when,  after  individual  ex- 
periences, we  may  enumerate  cases  of  obligatory  arbitration 
for  all, 

and  asked  if  the  opportune  moment  had  not  come.^ 

At  the  same  time,  M.  de  la  Barra,  of  Mexico,  presented  the 
text  of  a treaty  of  compulsory  arbitration  of  international 
differences  consisting  solely  of  pecuniary  claims,  negotiated 
by  the  Pan-American  Conference  at  the  city  of  Mexico,  on 
January  30,  1902,  by  the  plenipotentiaries  of  seventeen  Amer- 


‘ For  the  text  of  the  treaty,  see  Official  Report  of  the  American  Delega- 
tion to  the  Second  International  Conference  of  American  States  (Senate 
Document,  No.  330,  57th  Congress,  1st  Session),  pp.  139-143;  Quesada, 
loc.  cit.,  pp.  83-85. 

* La  Deuxieme  Conference  Internationale  de  la  Paix,  1907,  Vol.  II,  First 
Commission,  1st  session  (June  22,  1907). 


COMPULSORY  ARBITRATION  AT  THE  CONFERENCE  333 


ican  states  and  prolonged  till  the  thirtieth  of  December  1912 
by  the  unanimous  vote  of  the  nations  represented  at  the 
Conference  of  Rio  de  Janeiro  in  1906J 

It  appears,  therefore,  that  from  the  very  first  session  of  the 
First  Commission  of  the  Conference  the  question  of  compulsory 
arbitration  was  clearly  and  effectively  presented  by  the  Presi- 
dent of  the  Commission,  the  indefatigable  partisan  in  1899  as 
in  1907,  and  by  the  Mexican  delegation  as  representative  of 
Pan-America.  Dr.  Zorn’s  prophecy  of  1906  that  the  question 
would  probably  be  considered  by  the  Conference  was  thus 
realized  in  the  largest  measure,  and  with  every  prospect  of 
success. 

The  desire  of  the  Conference  undoubtedly  was  to  negotiate 
a general  treaty  of  arbitration;  for  inasmuch  as  many  States 
had  bound  themselves  individually  by  special  treaties  to  sub- 
mit international  difficulties  to  arbitration,  it  was  felt  possible 
to  reach  a general  agreement  by  the  terms  of  which  the  Powers 
represented  at  the  Conference  would,  in  a single  convention, 
bind  themselves  collectively  to  do  that  which  many  had  agreed 
to  do  individually  in  separate  and  special  treaties.  Thirty- 
three  treaties  of  arbitration,  concluded  from  1899  to  the  date 
of  the  Conference,  showed  a strong  and  growing  tendency  in 
favor  of  arbitration.  The  arbitration  convention  concluded 
at  Rio  de  Janeiro  in  1906  showed  the  American  continent  as 
a unit  in  favor  of  a general  treaty.  It  was  admitted  by  the 
friends  of  arbitration  that  difficulties  might  arise,  but  it  was 
felt  that  a fair  and  thorough  discussion  of  them  would  suggest 
a solution,  so  that  a general  treaty  of  arbitration,  less  progres- 
sive it  may  be  than  some  special  and  individual  treaties  con- 
cluded between  nations  whose  faith  in  arbitration  is  as  un- 
shaken as  it  is  extreme,  would  be  the  inevitable  outcome  of  the 
Second  Peace  Conference  at  The  Hague. 

In  the  course  of  the  discussion  each  nation  represented  con- 
fessed its  faith  in  arbitration.  The  difficulty  only  arose  when 

* La  Deuxieme  Conference  Internationale  de  la  Paix,  Vol.  II,  First 
Commission,  1st  Session,  Jime  22,  1907. 


334 


THE  HAGUE  PEACE  CONFERENCES 


a concrete  question  was  presented.  If,  for  example,  it  was 
proposed  to  arbitrate  all  conflicts  of  a legal  nature,  the  objec- 
tion was  promptly  made  that  the  term  legal  nature  was  rather 
broad;  that  the  dispute  might  involve  political  or  economic 
questions.  If  a concrete  case  were  taken,  such  as  an  agree- 
ment to  submit  pecuniary  claims  where  the  liability  was 
admitted,  some  delegations  objected  that,  while  willing  to 
conclude  a special  treaty  to  this  effect  with  a particular  coun- 
try, they  were  unwilling  to  conclude  a general  treaty  bind- 
ing themselves  to  all  the  world.  If  it  were  sought  to  exclude 
from  arbitration  questions  involving  independence,  vital  in- 
terest, and  honor,  some  nations,  especially  Germany,  objected 
that  the  obligation  thus  assumed  was  illusory  because  the 
suggestion  of  the  presence  of  any  one  of  these  three  reserva- 
tions might  prevent  arbitration. 

Again,  it  was  insisted  that  an  agreement  to  submit  all  legal 
questions  might  involve  the  duty  to  submit  to  arbitration 
judgments  of  national  courts,  and  that  nations  must  be  very 
careful  of  the  decisions  or  judgments  of  their  national  tribunals 
lest  a respect  for  municipal  or  national  justice  be  lost.  If  it 
were  stated  that  the  effect  of  an  arbitral  decision  should  be 
limited  to  the  future  so  as  not  to  be  retroactive,  it  was  replied 
that  a decision  between  two  contracting  parties  could  not 
bind  the  other  signatories  who  had  taken  no  part  in  the  arbi- 
tration, and  that  a series  of  irreconcilable  decisions  would 
sow  the  seeds  of  future  conflict  and  dissension.  The  mere  state- 
ment of  these  objections  shows  the  serious  nature  of  the  diffi- 
culty, but  it  is  a diflficulty  inherent  in  arbitration,  although 
it  may  be  more  marked  in  a general  convention  than  in  a 
special  treaty  concluded  between  two  Powers. 

4.  The  Various  Projects  op  Compulsory  Arbitration 

To  set  forth  at  length  and  in  detail  the  proceedings  of  the 
First  Sub-Commission,  the  discussions  of  the  Committee  of 
Examination  A,  to  which  arbitration  was  referred,  and  the 
final  discussions  of  the  First  Commission  in  plenary  session. 


COMPULSORY  ARBITRATION  AT  THE  CONFERENCE  335 


would  require  a volume.  It  is  therefore  proposed  in  the  pres- 
ent account  to  consider  in  brief  but  necessary  detail  the  dis- 
cussions indispensable  to  the  negotiation  of  a general  treaty  of 
arbitration,  and  to  exclude  extraneous  matters,  which,  though 
interesting  and  indeed  valuable,  are  not  necessary  to  under- 
stand the  declaration  concerning  obligatory  arbitration  even- 
tually adopted  by  the  Conference. 

In  the  first  place,  it  may  therefore  be  said  that  five  different 
projects  of  general  arbitration  were  presented  to  the  Commis. 
sion  and  that  these  projects  served  as  the  basis  of  discussion 
in  commission  as  will  as  in  the  Committee  of  Examination- 
They  are  as  follows: 

1.  Proposition  of  the  United  States  of  America. 

2.  Proposition  of  Servia. 

3.  Proposition  of  Portugal. 

4.  Proposition  of  Sweden. 

5.  Proposition  of  Brazil. 

Numerous  amendments  were  offered,  numerous  compro- 
mises suggested,  but  on  examination  it  will  be  found  that 
however  original  they  nevertheless  related  to  the  five  proposi- 
tions. 

The  American  proposition*  as  presented  by  Mr.  Choate  on 
July  18,  1907,  represented  the  minimum  requirement  for  a 
treaty  of  compulsory  arbitration,  namely,  the  submission  of 
legal  questions  and  controversies  arising  out  of  the  interpre- 
tation and  application  of  treaties  and  conventions;  but  that 
questions  affecting  third  States,  not  parties  to  the  controversy 
were  excluded  as  also  questions  involving  the  independence, 
vital  interests  and  honor  of  the  contracting  parties.  Of  these 
reserves  the  parties  themselves  were  to  be  the  sole  judges.  It  is 
evident,  therefore,  from  this  brief  summary  that  the  project  pre- 
sented by  the  American  delegation  was  practically  the  Franco- 
British  treaty  of  1903.  The  important  and  sole  difference 
lay  in  the  fact  that  a subsequent  article  of  the  American  proj- 

'LaDexixi^me  Conference  Internationale  de  la  Paix,  1907,  Vol.  II,  First 
Commission,  Annex  20. 


336 


THE  HAGUE  PEACE  CONFEEENCES 


ect  provided  that  the  compromis  should  be  framed  in  accord- 
ance with  the  laws  and  constitutions  of  the  contracting  States, 
a formula  devised  in  order  to  safeguard  the  rights  of  the  Amer- 
ican Senate  and  generally  the  internal  branch  of  the  govern- 
ment, which,  according  to  the  constitution  of  the  respective 
countries,  may  properly  determine  in  last  instance  the  ques- 
tion to  be  submitted.  It  will  be  recalled  that  the  action  of  the 
American  Senate  in  amending  “special  agreements”  to  read 
“ special  treaty  ” made  the  cooperation  of  the  Senate  necessary 
in  the  negotiation  of  the  compromis,  thus  raising  to  the  formal- 
ity and  dignity  of  a treaty  that  which  might  be  and  ordinarily 
is  considered  a matter  of  arbitral  procedure  for  the  foreign 
offices  of  the  contracting  countries.  This  article  may  appear 
superfluous,  because  it  is  clearly  understood  that  any  interna- 
tional agreement  to  be  binding  must  be  negotiated  by  the 
proper  internal  organ.  If  unnecessary  or  superfluous,  its 
presence  could  only  be  objectionable  in  a formal  or  literal 
sense,  but  if  it  facilitated  the  acceptance  of  the  treaty  its 
presence  would  be  amply  justified.  As  will  be  seen,  however, 
this  clause  was  the  subject  of  much  criticism  and  it  was  only 
retained  in  the  draft  of  the  convention  after  much  discussion 
and  difficulty. 

On  behalf  of  Servia,^  M.  Milovanovitch  stated  in  substance 
that  stipulations  determining  the  rights  and  duties  between 
sovereign  States  should  be  clear  and  precise,  and  that  therefore 
the  Servian  proposition  enumerated  and  limited  the  cases  to 
which  obligatory  arbitration  extends.  The  negative  formula 
of  reserves  concerning  essential  interests  or  the  honor  of  the 
States  should  be  rejected  because  too  vague.  This  proposition 
embraced  the  differences  which  result  from  the  interpretation 
or  application  of  all  international  acts  regulating  commercial, 
economic,  administrative  and  judicial  relations  among  the 
States,  as  well  as  the  settlement  of  pecuniary  claims  between 
the  States,  or  between  a State  and  the  subject  or  citizen  of 


*La  Deuxi^me  Conference  Internationale  de  la  Paix,  1907,  Vol.  II,  First 
Commission,  Annex  18. 


COMPULSORY  ARBITRATION  AT  THE  CONFERENCE  337 


other  States,  provided,  however,  that  in  this  latter  category 
the  national  tribunals  were  not  competent. 

The  proposition^  presented  by  Portugal  was  expressly  stated 
by  the  Delegation  of  that  State  to  be  the  project  of  the  Inter- 
parliamentary Union  which  was  itself  based  upon  Article  10  of 
the  Russian  project  presented  to  the  First  Conference.  Its 
essential  characteristic  is  the  renunciation  by  the  signatory 
nations  of  reserves  in  certain,  clearly  determined  categories  of 
cases  which  the  nations  bind  themselves  to  submit  to  arbitra- 
tion. The  authoritative  interpretation  of  the  project  was  made 
by  the  Marquis  of  Soveral  on  presenting  his  project  at  the  fifth 
session  of  the  Fifth  Sub-Commission  held  on  July  16,  1907. 

On  introducing  the  proposition  of  the  Swedish  Delegation, 
M.  de  Hammarskjold  stated  that  its  intention  was  to  render 
arbitration  compulsory  for  questions  of  a legal  nature  and 
especially  in  questions  of  the  interpretation  and  application 
of  international  conventions,  provided  that  the  controversies 
did  not  involve  vital  interests  or  independence.  But  the 
Swedish  delegation  believed  it  possible,  and  indeed  advisable 
to  submit  to  arbitration  certain  questions  which  did  not  involve 
questions  of  vital  interest  and  independence,  and,  that  by  ex- 
press agreement  of  the  contracting  parties,  the  right  to  invoke 
these  reserves  should  be  specifically  renounced  in  the  following 
enumerated  categories:  first,  in  cases  of  pecuniary  claims 
when  the  principle  of  indemnity  is  admitted;  second,  in  case 
of  pecuniary  claims  involving  the  interpretation  or  application 
of  conventions  of  all  kinds  between  the  parties  in  controversy ; 
third,  in  case  of  pecuniary  claims  arising  from  acts  of  war, 
civil  war  or  pacific  blockade,  the  arrest  of  strangers  or  the 
seizure  of  their  property;  but  that  an  agreement  to  submit 
these  controversies  to  arbitration  should  not  in  any  way  pre- 
vent the  parties  from  submitting  other  cases  covered  by  exist- 
ing special  agreements  or  treaties  of  arbitration.^ 

‘La  DeuxiSme  Conf4rence  Internationale  de  la  Paix,  1907,  Vol.  II,  First 
Commission,  Annex  19. 

^La  Deuxi^me  Conf4rence  Internationale  de  la  Paix,  1907,  Vol.  II.  First 
Commission,  Annex  22. 


338 


THE  HAGUE  PEACE  CONFERENCES 


The  Brazilian  proposition ‘presented  on  the  twenty-ninth  day 
of  July,  1907,  reserved  the  right  of  the  Signatory  Powers  to 
refuse  arbitration  until  good  offices  or  mediation  as  well  as  diplo- 
macy had  been  tried  and  failed,  and  excluded  from  the  domain 
of  compulsory  arbitration  questions  affecting  the  independence, 
territorial  integrity,  essential  interests,  internal  laws  and 
institutions  as  well  as  the  interest  of  third  powers.  Further, 
in  case  of  differences  affecting  the  rights  of  inhabited  terri- 
tories arbitration  should  only  be  compulsory  with  the  previous 
consent  of  the  inhabitants  interested  in  the  controversy;  that 
each  party  in  interest  had  the  right  finally  to  decide  whether 
the  controversy  involved  its  independence,  territorial  integrity, 
its  essential  interests  or  its  institutions.  The  Brazilian  dele- 
gation stated  that  the  compulsory  arbitration  of  controversies 
of  a judicial  nature  or  involving  the  interpretation  of  treaties 
should  be  prospective  not  retroactive,  and,  therefore,  could 
not  apply  to  controversies  already  pending.  It  will  be  noted 
that  the  Brazilian  proposition  confined  arbitration  within 
singularly  narrow  limits,  and,  as  M.  de  Martens  pointed  out, 
would  exclude  many  and  important  cases  susceptible  of  arbi- 
tration and  which  had  actually  been  arbitrated  in  recent 
years.^ 

Before  passing  to  the  general  discussion,  it  should  be  said 
that  the  delegation  of  Greece  declared  itself  favorable  to  the 
maintenance  of  the  provisions  of  Article  16  of  the  Convention 
of  July  29,  1899,  but  expressed  the  belief  that  special  treaties 
concluded  between  the  Powers  are  preferable  to  a general 
treaty  which  would  be  restricted,  that  is,  less  comprehensive 
and  progressive  than  special  treaties  between  two  Powers. 
However,  in  case  the  Conference  should  prefer  to  take  a step  in 

' La  Deuxieme  Conference  Internationale  de  la  Paix,  1907,  Vol.  II,  First 
Commission,  Annex  23. 

^ The  criticism  of  M.  de  Martens  was  even  more  pointed,  for  the  Brazilian 
proposition  would,  in  his  judgment,  “ exclude  most  of  the  questions  which 
have  been  the  subject  of  fifty-five  arbitral  awards  rendered  in  the  course  of 
the  nineteenth  century.” — La  Deuxieme  Conference  Internationale  de  la 
Paix,  1907,  Actes  et  Documents,  Vol.  I,  p.  462. 


COMPULSOEY  ARBITKATION  AT  THE  CONFERENCE  339 


advance  and  to  conclude  a general  treaty,  the  Delegation 
called  to  the  attention  of  the  Conference  the  provisions  of  Arti- 
cle 10  of  the  propositions  presented  by  the  Russian  Govern- 
ment on  July  5,  1899,  to  the  Third  Commission  of  the  First 
Conference.  This  project,  it  will  be  remembered,  enumerated 
the  cases  which,  as  far  as  they  did  not  concern  vital  interests 
and  the  honor  of  States,  might  be  submitted  to  arbitration. 
The  list  comprehends,  in  addition  to  pecuniary  claims  when 
the  principle  of  indemnity  is  recognized  by  the  parties,  differ- 
ences concerning  the  interpretation  or  application  of  cate- 
gories of  general  treaties.  Article  10  was  therefore  printed  as 
a proposition  and  as  such  presented  to  the  commission. 

It  is  thus  seen  that  the  Greek  delegation  expressed  itself  in 
favor  of  special  treaties  rather  than  a general  convention. 
This  view  was  the  view  of  the  German  delegation  and  was 
presented  with  great  force  and  fullness  in  an  address  by  Baron 
Mamchall  von  Bieberstein,  delivered  at  the  seventh  session  of 
the  Sub-Commission,  held  on  July  23, 1907.  He  stated  that 

a general  arbitration  clause  which,  between  two  nations,  defines 
with  sufiicient  clearness  the  rights  and  duties  flowing  therefrom, 
may  be  too  vague  and  consequently  inapplicable  in  a world 
treaty; 

that  the  elasticity  of  the  expressions  used  in  the  exceptions  to 
compulsory  arbitration,  namely,  “honor,  vital  interests  and 
independence,”  was  so  great  that  in  a treaty  signed  by  a 
great  number  of  countries  it  would  inevitably  lead  to  a dif- 
ference of  interpretation  and  to  numerous  disputes ; that  the 
right  of  each  nation  to  invoke  the  reserves  of  honor,  vital 
interests  and  independence  was  inconsistent  with  the  idea  of 
compulsory  arbitration,  especially  so  in  countries  where  the 
decision  is  in  the  province  of  some  legislative  body.  He 
was  of  opinion  that  the  use  of  the  word  “compulsory  ” in  a 
universal  provision  “binding  in  its  form  but  not  in  sub- 
stance ” involved  no  greater  compulsion  than  the  wording 
of  the  Convention  of  1899  to  the  effect  that 


340 


THE  HAGUE  PEACE  CONFERENCES 


arbitration  is  the  most  effective  and  at  the  same  time  the  most 
equitable  means  of  settling  controversies. 

As  to  those  questions  which  did  not  concern  honor  or  vital 
interests  and  to  which  compulsory  arbitration  could  be  applied 
without  restriction,  the  Baron  stated  that,  after  ascertaining 
that  arbitration  could  be  established  for  them  in  a general 
agreement,  it  was  necessary  to  bring  such  agreement  within 
the  scope  of  the  conventions  of  a universal  character  which 
many  of  the  Powers  have  signed,  citing  the  postal  and 
telegraphic  conventions,  etc.;  that  accoimt  must  be  taken 
of  the  fact  that  the  uniformity  of  their  application  might 
be  endangered  by  contradictory  awards,  and  means  devised 
of  precluding  such  an  eventuality.  He  called  attention 
to  the  difficulty  of  providing  in  a general  treaty  a court 
competent  to  consider  conventions  relating  to  the  rights  and 
duties  of  governments  and  those  determining  the  relations 
of  their  citizens  or  subjects,  which  come  within  the  jurisdic- 
tion of  the  ordinary  courts,  and  treaties  concerning  technical 
matters  where  the*  services  of  specialists  would  be  required, 
which  difficulties,  he  stated,  did  not  exist  in  treaties  concluded 
between  the  two  nations  concerned.  He  closed  his  address 
by  stating  that 

we  are  ready  to  examine  conscientiously  and  impartially  the 
propositions  which  have  already  been  made  and  those  which 
may  yet  be  presented  on  this  subject.^ 

The  attitude  of  Germany  in  favor  of  special  conventions 
divided  the  Conference  into  two  groups.  The  statement  that 
Germany  while  criticising  and  rejecting  the  reserves  of  inde- 
pendence, vital  interests  and  honor,  would  examine  without 
'parti  pris  lists  of  subjects  led  to  a belief  that  an  enumeration 
of  subjects  based  upon  the  Portuguese  proposition  would  be 
accepted. 

It  became  evident  during  the  course  of  the  discussion  in  the 

* La  Deuxi^me  Conference  Internationale  de  la  Paix,  1907,  Vol.  II,  First 
commission.  First  Sub-Commission,  7th  Session,  July  23,  1907. 


COMPULSORY  ARBITRATION  AT  THE  CONFERENCE  341 


Committee  of  Examination  A,  to  which  the  various  projects 
were  referred,  that  unanimity  was  out  of  the  question;  for 
Germany  stated  in  positive  and  formal  terms  that,  although  it 
was  a partisan  of  obligatory  arbitration  and  would  continue 
to  conclude  special  treaties  of  arbitration  in  the  future  as  in  the 
past,  it  would  not  be  a party  to  a general  or  world  treaty; 
that  the  inability  to  reach  an  agreement  meant  that  the  sub- 
ject was  not  ripe  for  agreement,  and  that  it  would  be  impru- 
dent to  attempt  to  resolve  the  question  before  its  time,  for 
in  accepting,  prematurely,  compulsory  arbitration,  discord 
would  be  sown  among  the  nations.  The  German  delegation 
formulated  its  objection  to  the  proposed  convention  in  the 
following  paragraphs : 

Article  16b  signifies  that  in  disputes  concerning  the  inter- 
pretation and  application  of  a series  of  international  treaties 
and  conventions  arbitration  will  be  obligatory  without  any 
reservation.  It  has  been  impossible  for  the  committee  of  ex- 
amination to  examine  carefully  the  innumerable  international 
stipulations  which  are  contained  in  the  list.  And,  nevertheless, 
to  our  mind,  such  an  examination  would  have  been  indispens- 
able. 

We  have  pointed  out  certain  grave  objections  which  would 
not  fail  to  appear: 

1.  Contradictory  arbitral  sentences  concerning  interpreta- 
tion of  universal  treaties  will  menace  even  the  existence  of  these 
treaties; 

2.  Arbitral  sentences  which  are  contrary  to  the  judicial  de- 
cisions of  the  national  tribunals  called  upon  to  interpret  and 
apply  the  international  treaties  would  create  an  impossible 
situation; 

3.  Arbitral  sentences  requiring  that  a State  should  modify 
its  legislation  in  virtue  of  an  international  treaty  might  provoke 
serious  conflicts  with  legislative  bodies. 

None  of  these  questions  have  been  decided  in  the  drafting 
committee. 

The  German  Government  is  disposed  to  insert  in  interna- 
tional treaties  where  proper  the  obligatory  compromis  clause 
for  stipulations  which  allow  of  it,  but  it  could  not  undertake 
in  a world  treaty  engagements  whose  extent  and  effect  it  is 
absolutely  impossible  to  foresee.^ 

* La  Deuxi^me  Conference  Internationale  de  la  Faix,  1907,  Actes  et  Docu- 
ments, Vol.  I,  p.  476. 


342 


THE  HAGUE  PEACE  CONFERENCES 


Austria-Hungary,  which  had  favorably  considered  the  nego- 
tiation of  a general  treaty,  wavered  and  eventually  opposed  it. 

Italy,  which  had  the  distinction  of  negotiating  more  treaties 
of  arbitration  than  any  other  Power,  began  to  doubt  the  expe- 
diency of  a general  treaty  in  the  presence  of  the  opposition  of 
Germany  and  Austria-Hungary.  The  Triple  Alliance  was 
evidently  as  binding  in  1907  as  in  1899.^ 

Belgium,  Switzerland,  Greece  and  Roumania  opposed  the 
draft  treaty  adopted  by  the  committee,  and  it  was  known 
that  some  delegations  not  represented  in  the  committee 
would  in  commission  vote  against  the  draft.  Austria-Hun- 
gary therefore  proposed  and  supported  by  argument  a proposi- 
tion, which,  relegating  arbitration  to  the  future,  bound  the 
Powers  to  communicate  at  some  future  time  the  lists  of  sub- 
jects which  they  would  be  willing  to  arbitrate  without  reserve. 

After  having  conscientiously  weighed  the  question  of  arbi- 
tration, the  Conference  has  ended  by  convincing  itself  that 
certain  matters  rigorously  determined  were  susceptible  of  being 
submitted  to  obligatory  arbitration  without  any  restrictions 
and  that  it  is  exactly  the  disputes  similar  to  these  matters  and 
especially  the  interpretation  or  application  of  certain  inter- 
national conventions — or  parts  of  conventions — which  lend 
themselves  most  especially  to  this  means  of  solution. 

The  greater  part  of  the  matters  in  question  being  of  a more 
or  less  technical  character,  every  decision  on  the  extent  and 
the  conditions  under  which  the  institution  of  obligatory  recourse 

* There  are  also  signs  that  the  German  Emperor  is  influencing  the  minds 
of  his  allies — the  sovereigns  of  Austria,  Italy,  Turkey,  and  Roumania— 
leading  them  to  oppose  it  [arbitration].  — Andrew  D White’s  Autobiography, 
Vol.  II,  p.  294. 

There  seems  no  longer  any  doubt  that  the  German  Emperor  is  opposing 
arbitration,  and,  indeed,  the  whole  work  of  the  Conference,  and  that  he  will 
insist  on  his  main  allies,  Austria  and  Italy,  going  with  him.  Count  Nigra, 
who  is  personally  devoted  to  arbitration,  allowed  this  in  talking  with  Dr. 
Holls. — Ibid.,  p.  298. 

Count  Nigra  expressed  himself  to  me  as  personally  most  earnestly  in 
favor  of  arbitration,  but  it  was  clear  that  his  position  was  complicated  by 
the  relations  of  his  country  to  Germany  as  one  of  the  Triple  Alliance; 
and  the  same  difficulty  was  observable  in  the  case  of  Count  Welsersheimb, 
the  representative  of  Austria,  the  third  ally  in  the  combination  of  which 
Germany  is  the  head. — Ibid.,  p.  300. 


COMPULSOEY  AKBITRATION  AT  THE  CONFERENCE  343 


to  arbitration  might  be  introduced,  should,  however,  be  preceded 
by  a study  which,  in  so  far  as  it  requires  very  special  knowledge 
and  experience,  is  beyond  the  competence  of  the  Conference 
and  could  only  be  confided  to  experts.  The  Conference  there- 
fore invites  the  governments,  after  the  close  of  the  meeting  at 
The  Hague,  to  submit  to  serious  examination  and  profound  study 
the  question  of  obligatory  arbitration.  This  study  shall  ter- 
minate at  . . . . , at  which  date  the  powers  represented 

at  the  Second  Hague  Conference  shall  notify  each  other,  by 
means  of  the  Royal  Government  of  the  Netherlands,  the  matters 
which  they  are  ready  to  make  the  subject  of  obligatory  arbitra- 
tion. ‘ 

It  should  be  said  that  the  delegation  of  Switzerland  pre- 
sented a project  which  in  a larger  or  lesser  extent  served  as 
the  basis  for  the  modified  British  and  American  propositions.^ 

Count  Tornielli  had  likewise  made  a proposition  of  a con- 
cihatory  nature  provided  the  draft  of  the  committee  should 
not  be  adopted  by  the  commission.  He  did  not,  however, 
request  a vote  in  the  committee,  but  reserved  his  right  to 
bring  the  text  to  the  formal  notice  of  the  commission.  The 
Italian  proposition  is  as  follows: 


The  Signatory  Powers  assert  that  the  principle  of  obligatory 
arbitration  is  applicable  to  disputes  which  have  not  been  settled 
by  diplomatic  means,  and  which  concern  legal  questions  and 
above  all  question  of  interpretation  or  application  of  inter- 
national conventions. 

They  agree  consequently  to  submit  the  application  of  obliga- 
tory arbitration  to  a profound  study  as  soon  as  possible.  This 
study  shall  be  concluded  by  the  thirty-first  of  December,  1908, 
at  which  date,  and  even  before,  the  Powers  represented  at  the 
Second  Hague  Conference  will  notify  each  other,  by  means  of 
the  Royal  Government  of  the  Netherlands,  the  subjects  which 
they  are  ready  to  make  the  subject  of  obligatory  arbitration.^  ? 


* La  Deuxieme  Conference  Internationale  de  la  Paix,  1907,  Actes  et  Docu- 
ments, Vol.  I,  pp.  482-483. 

’ Ibid.,  pp.  478,  489-490. 

® La  Deuxieme  Conference  Internationale  de  la  Paix,  1907,  Aetes  et  Docu- 
ments, Vol.  I,  p.  495. 


344 


THE  HAGUE  PEACE  CONFERENCES 


5.  Discussion  in  the  Committee  of  Examination  A 

An  analysis  of  the  discussions  in  the  Committee  of  Examina- 
tion shows  that  they  are  susceptible  of  a twofold  division: 
First,  those  concerning  arbitration  in  general,  and,  second, 
those  concerning  the  immediate  propositions  presented  for 
eventual  adoption  by  the  Conference  in  conventional  form. 
For  the  sake  of  clearness,  it  seems  advisable  to  consider  the 
first  group,  and  then  pass  in  review  the  various  articles  and 
propositions  which  ultimately  resulted  in  a formal  convention 
submitted  to  the  First  Commission. 

First.  M.  Asser  called  attention  to  the  fact  that  several  of 
the  cases  enumerated  in  the  Portuguese  proposition  were 
susceptible  of  judicial  treatment  by  national  tribunals  and  that 
the  relation  of  the  judgments  of  the  national  courts  to  arbitral 
decisions  would  have  to  be  carefully  considered.  M.  Lam- 
masch  recognized  that  the  subject  was  one  of  great  delicacy 
and  that  a clause  like  the  following  would,  if  adopted,  obviate 
the  difficulty  referred  to: 

It  is  understood  that  in  the  cases  enumerated  ....  the 
tribunal  of  arbitration  shall  not  be  competent  to  reform  or  to 
invalidate  decisions  of  courts  of  justice  of  the  contracting  Pow- 
ers, but  that  its  role  should  be  directly  limited  to  the  interpreta- 
tion of  the  conventional  provision  in  dispute.  However,  this 
interpretation  would  serve  to  guide  the  authorities  of  the 
Powers  between  which  arbitration  arose  in  the  future  applica- 
tion of  the  provision  in  question. 

Second.  In  the  next  place  Baron  Marschall  called  atten- 
tion to  the  fact  that  very  often  treaties  contain  provisions 
which  oblige  one  or  the  other  country  to  take  certain  adminis- 
trative or  legislative  action;  that  administrative  action  was 
not  likely  to  cause  difficulty,  but  that  the  necessity  for  legis- 
lative action  might  expose  a State  to  great  inconvenience, 
because  an  arbitral  decision  might  require  an  act  of  the  legis- 
lature to  give  full  effect  to  the  decision,  and  should  the  legis- 
lature refuse  to  pass  the  act,  the  international  tension  would 
be  great,  because  the  failure  to  do  so  would  result  in  a seeming 
violation  of  an  international  duty. 


COMPULSORY  ARBITRATION  AT  THE  CONFERENCE  345 


Third.  Attention  was  also  called  to  the  effect  which  the 
arbitral  decision  between  two  Powers  might  have  upon  all 
the  Powers  parties  to  the  arbitration  convention. 

As  these  three  questions  were  considered  at  great  length  and 
occupied  the  committee  during  several  entire  sessions,  it  is 
necessary  to  consider  each  in  turn  and  at  some  length. 

The  question  concerning  judgments  was  referred  to  a sub- 
committee, composed  of  Messrs.  Fusinato,  Asser  and  de  Merey, 
which,  in  its  report,  proposed  to  limit  the  cases  of  obligatory 
arbitration  to 

differences  concerning  the  interpretation  or  application  of  con- 
ventions concluded  or  to  be  concluded  and  enumerated  herein- 
after, as  far  as  they  refer  to  engagements  which  can  be  directly 
executed  by  the  Government  or  its  administrative  organs. 

It  was  explained  that  the  language  adopted  was  intended  to 
exclude,  by  necessary  implication,  the  submission  to  arbitra- 
tion of  international  differences  arising  from  treaties  or  con- 
ventions in  all  cases  in  which  the  national  tribunals  were  com- 
petent. The  clause  in  italics  in  the  above  paragraph  gave 
rise  to  prolonged  discussion  in  the  committee.  Eventually  it 
took  the  form  of  an  article  worded  as  follows: 

It  is  understood  that  conventional  stipulations  .... 
shall  be  submitted  to  arbitration  without  reserve,  as  far  as  they 
refer  to  engagements  which  should  be  executed  directly  by  the 
Governments  or  by  their  administrative  organs. 

This  article,  however,  was  objected  to  as  defective,  in  that 
the  effect  of  the  arbitral  decision  to  be  reached  was  not  defined. 
Sir  Edward  Fry  and  M.  Milovanovitch  proposed  the  follow- 
ing amendment: 

It  is  understood  that  arbitral  sentences,  as  far  as  they  relate 
to  questions  entering  within  the  competence  of  national  justice, 
shall  only  have  an  interpretative  value  without  any  retroactive 
effect  upon  anterior  judicial  decisions. 

This  proposition  was  presented  and  adopted  as  a substitute 
for  the  preceding,  although  an  analysis  of  the  texts  of  both 


346 


THE  HAGUE  PEACE  CONFERENCES 


articles  shows  that  they  deal  with  two  different  phases  of  the 
question  and  are  not  in  terms  inconsistent. 

In  regard  to  the  second  question,  namely,  the  duty  of  a 
State  to  modify  its  legislation  in  order  to  give  effect  to  an 
arbitral  decision,  it  may  be  said,  as  was  constantly  said  in  the 
committee,  that  the  difficulty  is  not  inherent  in  a general 
treaty  of  arbitration;  that  it  presents  itself  in  the  same  form 
and  with  equal  importance  in  any  special  treaty  of  arbitration 
concluded  between  any  two  Powers. 

In  regard  to  the  third  matter,  namely,  the  effect  of  an  arbitral 
judgment  upon  Powers  other  than  those  parties  to  the  litiga- 
tion, and,  therefore,  concluded  by  the  judgment,  it  was  sug- 
gested by  M.  Fusinato  that  the  arbitral  judgment,  concern- 
ing the  validity  of  interpretation  of  a convention,  should  have 
the  same  value  as  the  convention  itself,  and  ought  to  be  equally 
observed,  excluding  therefrom  private  rights  acquired  before 
the  delivery  of  the  decision.  When  the  arbitral  judgment 
concerned  the  validity  or  interpretation  of  a convention 
between  several  States,  the  parties  between  whom  the  judg- 
ment is  pronounced  should  be  held  to  communicate  im- 
mediately the  text  to  the  other  contracting  Parties;  if  three- 
quarters  of  the  contracting  States  declare  their  acceptance  of 
the  interpretation,  this  interpretation  should  be  obligatory  for 
all.  In  the  contrary  case,  the  judgment  would  only  have 
value  between  the  litigant  parties  and  only  for  the  case  as 
presented. 

M.  Asser  called  attention  to  the  fact  that  Article  56  of  the 
convention  of  July  29,  1899,  shows  that  the  members  of  the 
First  Conference  had  considered  the  question.  This  article  is 
as  follows: 

The  awards  shall  be  obligatory  only  upon  the  parties  who 
have  concluded  the  arbitration  agreement.  When  there  is  a 
question  of  the  interpretation  of  an  agreement,  entered  into 
by  other  Powers  besides  the  parties  in  litigation,  the  parties  to 
the  dispute  shall  notify  the  other  Powers  which  have  signed 
the  agreement,  of  the  special  agreement  which  they  have  con- 
cluded. Each  one  of  these  Powers  shall  have  the  right  to  take 
part  in  the  proceedings.  If  one  or  more  among  them  avail 


COMPULSORY  ARBITRATION  AT  THE  CONFERENCE  347 

themselves  of  this  permission,  the  interpretation  in  the  judg- 
ment becomes  obligatory  upon  them  also. 

He  believed  that  a combination  of  this  article  with  M.  Fusi- 
nato’s  proposition  would  equitably,  as  well  as  legally,  solve 
the  difficulties  indicated.  The  matter  was  referred  to  a sub- 
committee which  reported  the  following  text,  which  met  with 
approval : 

If  all  the  Signatory  States  of  one  of  the  conventions  enu- 
merated above  are  parties  to  a litigation  concerning  the  inter- 
pretation of  a convention,  the  arbitral  judgment  shall  have  the 
same  value  as  the  convention  itself  and  shall  be  equally  observed. 

If,  on  the  contrary,  the  litigation  arises  only  between  several 
of  the  Signatory  States,  the  parties  in  litigation  shall  promptly 
notify  the  Signatory  Powers,  which  have  the  right  to  intervene 
in  the  suit. 

The  arbitral  judgment  thus  pronounced  shall  be  communi- 
cated by  the  parties  to  the  controversy  to  the  Signatory  States 
which  have  not  taken  part  in  the  litigation.  If  they  accept 
unanimously  the  interpretation  of  the  point  in  controversy, 
this  interpretation  shall  be  obligatory  for  all  and  shall  have  the 
same  value  as  the  convention  itself.  In  the  contrary  case,  the 
judgment  shall  only  decide  the  case  which  has  been  the  object 
of  litigation. 

It  is  understood  that  the  present  convention  does  not  inter- 
fere with  the  clauses  of  arbitration  already  contained  in  existing 
treaties. 

At  a subsequent  period,  M.  Fusinato  proposed  that  the 
following  four  paragraphs  be  added  to  the  third  paragraph  of 
the  above  by  way  of  continuation  and  elaboration : 

The  procedure  to  be  followed  in  recording  adherence  to  the 
principle  established  by  the  award  in  the  case  contemplated 
in  paragraph  3 of  the  preceding  article,  shall  be  as  follows : 

If  it  is  a question  of  a convention  establishing  a union  with 
a special  bureau,  the  parties  which  have  taken  part  in  the  pro- 
ceedings shall  transmit  the  text  of  the  award  to  the  special 
bureau  through  the  nation  within  whose  territory  the  bureau 
has  its  seat.  The  bureau  shall  word  the  text  of  the  article  of 
the  convention  in  conformity  with  the  award,  and  shall  com- 
municate it  through  the  same  channel  to  the  Signatory  Powers 
which  have  not  taken  part  in  the  proceedings.  If  the  latter 
unanimously  accept  the  text  of  the  article,  the  bureau  shall 
draw  up  a record  of  such  acceptance,  a certified  copy  of  which 
shall  be  transmitted  to  all  the  Signatory  Powers. 


348 


THE  HAGUE  PEACE  CONFERENCES 


Nations  whose  reply  may  not  have  reached  the  bureau  within 
a year  from  the  date  of  the  communication  made  by  the  bureau, 
shall  be  considered  to  have  given  their  consent. 

If  it  is  not  a question  of  a convention  establishing  a union 
with  a special  bureau,  the  said  functions  of  the  special  bureau 
shall  be  performed  by  the  International  Bureau  of  The  Hague 
through  the  medium  of  the  Government  of  the  Netherlands. 

It  is  strictly  understood  that  the  present  stipulation  in  no 
wise  affects  arbitration  clauses  already  contained  in  existing 
treaties. ‘ 

The  proposition  was  approved  by  the  committee,  and  the 
four  paragraphs  were  added,  thus  concluding  the  subject  under 
consideration. 

The  various  paragraphs  already  quoted  indicate  the  final 
views  of  the  committee  upon  the  questions  of  a general  nature 
inherent  in  arbitration,  whether  it  be  general  or  special.  The 
committee  thereupon  took  up  the  various  projects  submitted 
in  order  to  elaborate  a convention  for  submission  to  the  com- 
mission. 

The  American  delegation  presented,  it  will  be  remembered, 
a proposition  embodying  the  usual  formula  of  arbitration 
with  the  reserves  of  independence,  vital  interests  and  honor. 
As  the  committee  preferred  to  consider  a list  of  concrete  cases 
in  which  the  nations  agreed  in  advance  to  renounce  reserves 
and  bind  themselves  to  submit  to  arbitration  without  reserve, 
the  American  delegation  took  no  part  in  the  early  discussion  of 
the  committee.  At  a later  period,  the  delegation  was  authorized 
to  accept  lists  without  reserve,  provided,  however,  that  any 
cases  presented  should  be  subject  to  the  ratification  of  the  Sen- 
ate of  the  United  States  and  be  binding  upon  the  United 
States  only  after  such  ratification.  In  pursuance  of  the  in- 
struction referred  to,  a project  for  an  arbitration  treaty  includ- 
ing lists  was  presented  by  the  American  delegation  to  serve 
as  a basis  for  discussion.  In  this  project,  however,  the  usual 
reserves  were  maintained  except  for  the  concrete  cases,  and 
the  right  of  the  Senate  to  cooperate  in  the  establishment  of 


* La  Deuxi^me  Conference  Internationale  de  la  Paix,  1907,  Actes  et  Docu- 
ments, Vol.  I,  p.  504. 


COMPULSORY  ARBITRATION  AT  THE  CONFERENCE  349 


the  compromis  was  especially  reserved.  It  should  be  said 
that  the  British  delegation  expressed  its  preference  for 
the  simple  American  formula  both  in  the  commission  and  in 
the  committee,  but  seeing  that  the  committee  preferred  the 
list  of  cases  with  renunciation  of  the  reserves,  Great  Britain 
likewise  presented  a draft  of  treaty  based  upon  the  Portuguese 
or  Interparliamentary  project. 

As  the  members  of  the  committee  only  desired  to  make  the 
renunciation  for  the  concrete  cases  to  be  specified  in  the  con- 
vention and  to  maintain  the  reserves  in  all  other  cases.  Articles 
1 and  2 of  the  American  proposition  were  adopted  by  the 
committee  as  the  first  or  introductory  articles  of  the  proposed 
convention.  The  third  article  of  the  Portuguese  proposition 
required  the  renunciation  of  the  reserves  in  disputes  arising 
over  treaties  of  commerce  and  navigation.  Attention  was 
called  to  the  fact  that  commerce  covered  a very  wide  field,  and 
that  it  might  happen  that  many  provisions  of  commercial 
treaties  were  of  a political  or  economic  rather  than  legal 
nature.  The  question  was  referred  to  a sub-committee  for  its 
consideration,  and  M.  Hammarskjold,  on  behalf  of  the  com- 
mittee, reported  the  following; 

Obligatory  arbitration,  rejected  for  conventions  of  com- 
merce and  navigation  whose  domain  is  too  vast  and  too  com- 
plex, might  be  proposed  for  the  interpretation  of  tariff  conven- 
tions; clauses  stipulating  the  right  of  strangers  to  exercise 
commercial  navigation,  either  general  or  under  certain  restric- 
tions; clauses  relating  to  taxes  required  of  merchant  vessels 
(wharfage,  hghthouse,  pilotage),  to  duties  and  taxes  involved 
in  cases  of  general  average  or  of  shipwreck;  clauses  concerning 
the  weighing  and  measuring  vessels;  clauses  stipulating  the 
assimilation  of  strangers  to  nationals  in  matters  of  taxes  and 
imposts;  clauses  relating  to  the  right  of  strangers  to  engage  in 
commerce  or  industry,  to  exercise  the  liberal  professions  in  case 
of  direct  concession  or  an  assimilation  to  nationals;  clauses 
stipulating  the  right  of  foreigners  to  acquire  and  possess  prop- 
erty.* 


* La  Deuxi^me  Conference  Internationale  de  la  Paix,  1907,  Actes  et  Docu- 
ments, Vol.  I,  p.  475. 


350 


THE  HAGUE  PEACE  CONFERENCES 


The  committee  thereupon  proceeded  to  consider  the  con- 
crete cases  presented  in  the  various  projects  before  it. 

The  British  delegation  proposed  to  separate  the  lists  into 
two  categories,  the  first  to  consist  of  those  cases  or  subjects 
which  were  unanimously  accepted.  For  the  second  category, 
a protocol  was  proposed  which  would  enumerate,  at  one  and 
the  same  time,  the  cases  susceptible  of  arbitration  and  the 
names  of  the  States  signing  the  convention,  as  well  as  the 
conditions  in  which  the  new  subjects  might  be  added  to  the 
list.  As  the  proposed  convention  was  built  up  around  Article 
16  of  the  Convention  of  1899,  which  provided  for  arbitration  as 
the  most  equitable  and  the  most  efficacious  means  of  settling 
international  difficulties,  the  first  two  articles  voted  were 
termed  16a  and  16b.  According  to  the  British  plan,  an 
article  stipulating  the  existence  of  certain  cases  in  which  the 
reserves  might  be  renounced  would  be  16c;  the  articles  in 
which  the  reserves  actually  were  renounced  would  be  16d, 
and  the  article  referring  to  the  additional  objects  susceptible 
of  arbitration  without  reserve  would  be  16e.  The  proposition 
to  annex  the  protocol  was  adopted  in  committee  by  10  votes 
to  5 and  3 abstentions,  and  the  protocol  was  adopted  by  a 
vote  of  12  to  4 and  2 abstentions. 

The  American  proposition  provided  that  in  each  case  the 
Signatory  Powers  shall  frame  a special  agreement  {compromis) 
in  conformity  with  the  constitutions  and  laws,  respectively, 
of  the  Signatory  Powers,  determining  clearly  the  object  of 
the  litigation,  the  extent  of  the  Powers  of  the  arbitrators,  the 
procedure  and  the  delays  to  be  observed  in  constituting  the 
arbitral  tribunal.  The  matter  of  the  compromis  was  discussed 
at  great  length  both  in  the  Committee  of  Examination  and  in 
the  plenary  commission.  In  introducing  the  American  project 
in  the  first  commission,  Mr.  Choate  called  attention  to  the 
necessity  of  the  compromis,  and  reserved  the  right  of  the 
Senate  to  pass  upon  it.‘ 

* Article  III  provides  that,  in  each  case  that  may  arise  a special  agree- 
ment or  protocol  shall  be  concluded  by  the  parties  in  conformity  with  the 


COMPULSORY  ARBITRATION  AT  THE  CONFERENCE  351 


The  objection  to  the  article  providing  the  compromis  was 
and  is  that  the  treaty  of  arbitration  binds  both  parties  to  con- 
clude the  compromis]  that  by  this  treaty  the  foreign  country 
in  which  the  determination  of  the  compromis  is  regarded  as  a 
matter  of  arbitral  procedure  is  bound  immediately  to  con- 
clude the  compromis,  whereas,  the  United  States  is  not  bound 
until  the  proper  branch  of  its  Government  shall  have  estab- 
lished it.  The  American  delegation  failed  to  understand  how 
one  nation  could  be  bound  and  the  other  not;  for  the  com- 
promis, as  determined  by  diplomatic  negotiations,  would  be 
binding  upon  both  or  neither,  and  that  the  inequality  referred 
to  by  the  opponents  of  the  insertion  of  the  compromis  was 
non-existent.  This  view  of  the  article  concerning  the  com- 
promis raised  great  objections  in  committee  and  in  commission, 
and  seemed  to  furnish  a strong  argument  against  the  negoti- 
ation of  a general  arbitration  treaty.  The  article  was  however 
adopted. 

The  convention  ultimately  accepted  by  the  committee  was 
based  upon  the  amended  American  and  British  proposition  and 
was  known  as  the  Anglo-American  project. 

The  committee  of  examination  to  which  the  various  proj- 
ects concerning  compulsory  arbitration  were  referred  con- 
sisted of  representatives  of  eighteen  states,  and  it  was  agreed 

constitution  or  laws  of  the  respective  parties  determining  precisely  the 
subject  of  the  litigation,  the  extent  of  the  powers  of  the  arbitrators  and  the 
procedure  and  details  to  be  observed  in  whatever  concerns  the  constitution 
of  the  arbitral  tribunal. 

The  form  of  this  article  is  rendered  necessary  by  the  constitutional  needs 
of  securing  for  every  such  agreement  or  protocol  before  it  can  become  effec- 
tive, the  approval  of  some  other  department  of  the  Governmentbesidesthe 
one  which  signs  the  agreement  as  a part  of  the  treaty-making  power.  For 
instance,  in  the  United  States,  the  Senate  of  the  United  States,  and  as  is 
believed  other  departments  of  government  in  many  other  states. — Ad- 
dress of  Mr.  Choate  before  the  First  Sub-Commission  of  the  First  Commis- 
sion, July  18,  1907. 

The  question  of  the  compromis  was  elaborately  discussed  by  another 
member  of  the  American  delegation,  in  the  Committee  of  Examination  A, 
14th  Session,  August  31,  1907;  in  the  Plenary  Session  of  the  First  Commis- 
sion, 7th  Session,  October  7,  1907.  See  also.  La  Deuxi^me  Conference 
Internationale  de  la  Paix,  1907,  Actes  et  Documents,  Vol.  I,  pp.  487-489. 


352 


THE  HAGUE  PEACE  CONFERENCES 


that  only  those  subjects  of  arbitration  should  be  reported  to 
the  commission  for  its  consideration  which  received  an  abso- 
lute majority  of  the  States  represented — ^that  is,  ten  or  more 
votes.  Seven  subjects  received  this  vote  and  were  referred 
for  insertion  in  the  article  provisionally  numbered  16d. 
The  subjects  thus  accepted  were:  (1)  gratuitous  and  recipro- 
cal assistance  of  indigent  sick  (12-4-2  abstentions) ; (2) 
international  protection  of  labor  (12-4-2  abstentions);  (3) 
means  of  preventing  collisions  on  the  seas  (12-4:-2  abstentions) ; 
(4)  weights  and  measures  (12-4-2  abstentions) ; (5)  gauging  of 
vessels  (12-4-2  abstentions) ; (6)  wages  and  effects  of  deceased 
sailors  (12-4-2  abstentions);  (7)  protection  of  literary  and 
artistic  property  (10-4—4  abstentions) 

6.  Discussion  in  Commission 

After  weeks  of  labor  and  profound  discussion,  the  Committee 
of  Examination  reported  to  the  First  Commission  in  plenary 
session  a project  based  upon  the  various  propositions  of  the 
United  States,  Great  Britain  and  Portugal.  The  Portuguese 
project  was,  as  previously  stated,  based  upon  Article  10  which 
had  failed  in  1899  and  the  project  of  the  Interparliamentary 
Union.  The  amended  American  and  British  projects  referred 
to  the  Portuguese  project,  and  the  convention  presented  to 
the  First  Commission  was  therefore  the  common  project  of  the 
three  delegations  as  amended  and  drafted  by  the  Committee 
of  Examination.  In  the  commission,  Baron  Marschall  von 
Bieberstein  undertook  the  arduous  duty  of  opposing  the  com- 
vention  which  it  was  the  desire  of  the  overwhelming  majority 
of  the  Conference  to  negotiate,  and  in  this  difficult  and  thank- 
less task  he  was  ably  assisted  by  M.  de  Merey,  who  had  pre- 

’ Pecuniary  claims  involving  the  interpretation  or  application  of  con- 
ventions of  all  kinds  between  the  parties  in  controversy  received  8 for, 
6 against  and  4 abstentions.  In  commission  it  fared  better,  receiving  31 
for,  8 against  and  5 abstentions,  and,  as  will  appear  later,  was  added  to 
the  proposed  list  in  the  project  of  convention  as  finally  drafted  and  adopted 
by  the  commission. 

For  the  successive  steps  by  which  agreement  was  reached  in  the  com- 
mittee and  the  votes  on  each  proposition,  see  La  Conference  Interna- 
tionale de  la  Paix,  1907,  Actes  et  Documents,  Vol.  I,  pp.  474-510. 


COMPULSORY  ARBITRATION  AT  THE  CONFERENCE  353 


viously  stated  that  Austria-Hungary  would  show  by  its  vote 
that  its  support  of  obligatory  arbitration  was  not  Platonic. 
M.  Beldiman  of  Roumania  likewise  opposed  the  convention 
with  great  force.  The  arguments  of  the  opposition  failed 
to  change  a vote  or  to  modify  a proposition.  The  project 
was  defended  skillfully  by  Mr.  Choate,  Sir  Edward  Fry,  M. 
Drago,  Messrs.  Several  and  d’Oliviera  on  behalf  of  Portugal, 
and  by  M.  Bourgeois  as  the  hving  embodiment  of  compulsory 
arbitration.  M.  Renault  defended  it  technically  with  great 
ability  and  felicity  of  expression,  and  his  address  in  reply  to 
the  objections  of  Baron  Marschall  was  in  the  opinion  of  not  a 
few  competent  judges  the  ablest  single  address  made  at  the 
Conference. 

The  discussion  which  the  projected  convention  of  arbitra- 
tion underwent  in  plenary  sessions  of  the  First  Commission 
was  long  and  detailed.  It  was  partly  of  a general  nature, 
opposing  the  conclusion  of  a general  arbitration  treaty,  and 
partly  directed  to  particular  articles  of  the  project.  It  seems, 
therefore,  inadvisable  to  set  it  forth  at  length  because  the 
objections  to  the  conclusion  of  a general  treaty  were  stated 
by  Baron  von  Marschall  von  Bieberstein,  and  adopted  by  the 
opponents  as  the  authoritative  exposition  of  their  opposition. 
Baron  Marschall  stated  that,  while  he  was  an  advocate  of  com- 
pulsory arbitration  and  applauded  the  arbitration  treaty 
recently  concluded  between  Italy  and  Argentine,  the  project 
of  the  committee  was  unacceptable  for  the  reasons  which  he 
stated  later;  that  there  were  two  systems  for  putting  com- 
pulsory arbitration  into  practice  which  he  characterized  as 
the  individual  system  and  the  universal  system;  that  accord- 
ing to  the  former  each  nation  reserves  the  individual  freedom 
of  choosing  the  parties  with  whom  it  is  to  agree,  the  cases  are 
defined  and  specified,  those  subjects  which  seem  susceptible  of 
arbitration  are  chosen  and  the  details  are  adapted  to  those 
subjects;  that  with  regard  to  disputes  concerning  the  inter- 
pretation of  treaties,  the  nations  which  have  concluded  them 
are  the  ones  which  insert  therein  the  stipulations  to  arbitrate 
which  may  be  done  between  two  nations,  between  several. 


354 


THE  HAGUE  PEACE  CONFEKENCES 


and  even  between  all  the  nations  of  the  world  when  the  treaty 
is  of  a universal  character  as  in  the  case  of  the  Postal  Union, 
He  then  stated  that  he  would  uphold  and  defend  two  theses: 

1.  The  conclusion  of  a treaty  of  compulsory  arbitration  is 
only  possible  by  applying  the  individual  system,  whereas  in 
the  universal  system  the  word  “compulsory”  will  be  but  an 
honorary  title  the  use  of  which  will  not  cover  the  numberless 
defects  of  the  legal  obligation  inherent  in  the  system. 

2.  Progress  toward  the  peaceful  solution  of  international 
disputes  can  only  be  realized  by  means  of  individual  treaties, 
while  a universal  treaty  with  its  necessarily  vague,  elastic  and 
general  terms,  will  tend  rather  to  engender  fresh  discord  than 
to  furnish  a solution  of  the  original  difficulty. 

Before  discussing  these  propositions  he  took  up  the  “table” 
to  be  kept  at  The  Hague  and  in  which  there  should  be  entered 
the  subjects  that  the  various  States  signified  wilMngness  to 
arbitrate.  The  registration  would  in  itself  constitute  an 
obligation  to  arbitrate.  He  said  that  from  a legal  stand- 
point the  table  was  unassailable,  but  that  as  a states- 
man he  opposed  the  innovation  because  he  considered  it 
contradictory  to  the  fundamental  basis  of  arbitration,  which 
was  good  understanding,  and  that  to  bar  the  choice  of  the 
contracting  parties  and  conclude  treaties  in  accordance  with 
a rigid  and  inanimate  table  would  be  to  eliminate  this  spirit 
which  would  be  equivalent  to  destroying  the  ideal  essence  of 
arbitration.  He  then  spoke  as  follows: 

I will  now  take  up  the  first  fundamental  articles  of  the  treaty 
of  compulsory,  universal,  and  general  arbitration. 

Arbitration  shall  be  compulsory  in  questions  of  a legal  nature. 

What  is  the  meaning  of  this  word?  I have  answered  that  it 
ought  to  preclude  “political”  matters.  Now,  it  is  absolutely 
impossible  to  establish,  in  a universal  treaty,  a line  of  demarca- 
tion between  these  two  ideas.  A question  may  be  a legal  one  in 
one  country  and  a political  one  in  another.  There  are  even  some 
purely  legal  matters  which  become  political  the  moment  a litiga- 
tion arises.  One  of  our  most  eminent  colleagues  told  us  the 
other  day  on  another  occasion  “that  politics  are  the  region  of 
international  law.” 

Is  it  desired  to  distinguish  between  “legal”  questions  and 
technical  and  economic  ones?  This  would  be  likewise  impossi- 
ble. This  shows  that  the  word  “ legal”  means  everything  and 


COMPULSORY  ARBITRATION  AT  THE  CONFERENCE  355 


means  nothing,  and  when  it  comes  to  interpretation  it  is  exactly 
the  same.  The  question  has  been  asked,  who  decides,  in  case 
of  a difference,  whether  a question  is  a legal  one  or  not?  No 
answer.  And  nevertheless  this  word  “legal”  is  the  nail  on 
which  the  whole  system  of  compulsory  arbitration,  with  its 
list  and  its  table,  has  been  hung.  If  this  nail  is  not  driven 
solidly,  everything  will  fall  to  the  ground.^ 

As  regards  the  wording  of  the  exceptions,  to  wit,  “honor, 
independence  and  vital  interest,”  I have  already  spoken  of 
them  in  my  first  speech,  and  I explained  that  they  have  no 
significance  in  a world-wide  treaty.  It  is  true  that  the  evil  is 
palliated  by  the  clause  that  each  party  shall  decide  itself  as  to 
the  exception  of  which  it  has  availed  itself.  Then  the  other 
evil  arises  that  there  is  no  longer  any  obligation.  These  two 
articles  begin  with  the  imperatives  “Thou  shalt”  and  end  with 
the  reassuring  words  “ If  thou  wilt.”  However,  there  is  a much 
more  serious  objection.  From  time  immemorial  one  of  the 
principal  sources  of  international  disputes  has  been  ambiguous 
stipulations  and  badly  worded  paragraphs.  Now,  here  we  are 
preparing  two  articles  which  do  not  contain  a single  word  to 
defme  distinctly  and  clearly  the  rights  and  duties  resulting 
therefrom — two  articles  which  fluctuate  between  the  opposite 
extremes  of  compulsion  and  option,  and  it  is  desired  to  recom- 
mend these  articles  to  the  world  as  “ the  most  effective  means  of 
settling  international  disputes.”  This  is  the  definition  of  arbi- 
tration contained  in  the  Convention  of  1899. 

I now  come  to  the  list,  that  is,  to  the  enumeration  of  the  points 
on  which  arbitration  is  compulsory  without  reservation,  except, 
of  course,  the  reservation  which  is  inherent  in  the  word  “legal,” 
the  reservation  with  regard  to  the  agreement  to  arbitrate,  and 
that  of  the  Constitution.  It  is  not  easy  to  examine  the  list,  for 
it  is  constantly  changing.  I will  therefore  speak  of  all  the  lists 
collectively,  not  only  of  the  list  which  is  in  force  at  the  time 
being  but  also  of  those  in  reserve,  particularly  of  the  Portuguese 
list  which  was  the  first  on  the  program.  What  strikes  one  is 
the  harmless  character  of  all  the  points.  This  is  not  a reproach. 
Even  controversies  of  a minor  nature  may  impair  the  relations 
between  nations.  But  I doubt  whether  it  is  beneficial  to  insert 
in  the  list  treaties  which  by  their  nature  preclude  any  dispute. 
My  imagination,  for  instance,  is  absolutely  incapable  of  pic- 
turing to  itself  a controversy  regarding  the  treaties  on  the 
admeasurement  of  vessels.  In  these  treaties  the  contracting 
nations  mutually  agree  to  recognize  the  certificates  of  admeas- 
urement. These  are  treaties  which  may  be  concluded  or 
denounced,  but  the  scope  of  which  cannot  give  rise  to  discus- 

‘ For  table,  see  La  Conference  Internationale  de  la  Paix,  1907,  Actes  et 
Documents,  Vol.  I,  pp.  542-543. 


356 


THE  HAGUE  PEACE  CONFERENCES 


sion.  It  is  the  same  with  “ weights  and  measures/’  “ estates  of 
deceased  sailors,”  and  others. 

However,  there  are  other  points  in  the  lists  which  demand 
the  most  serious  attention.  There  are  some  treaties  which 
obligate  the  contracting  nations  to  enact  certain  kinds  of 
legislation,  for  instance  the  treaty  on  the  “ Protection  of  work- 
men.” Suppose  a controversy  arises  as  to  whether  one  of  the 
nations  has  fulfilled  this  obligation.  The  question  is  arbitrated 
and  the  award  requires  the  amendment  of  the  law.  How  exe- 
cute this  award?  It  has  been  said  that  the  approval  of  this 
Convention  by  the  legislative  authorities  would  give  force  of  law 
to  all  awards  rendered.  If  this  is  really  the  case,  it  will  be  very 
difficult  to  secure  the  approval  of  the  Parliaments,  which  will 
hardly  be  disposed  to  accept  as  rivals  in  legislative  matters 
future  and  unlmown  arbitrators  the  choice  of  whom  will  devolve 
on  the  executive  of  the  nation.  It  has  been  said  on  the  other 
hand  that  the  amendment  of  the  law  as  required  by  the  award 
should  be  subjected  to  the  votes  of  the  Parliaments,  but  in 
case  of  a negative  vote,  would  this  amount  to  “vis  major”! 
Jurisconsults  have  not  agreed  on  the  answer.  Some  have  said 
“no”  and  others  “yes.”  The  question  has  met  with  no  solu- 
tion in  the  committee. 

There  are  still  graver  problems  in  the  list.  We  find  therein 
a series  of  treaties  whose  interpretation  and  apphcation  belong 
exclusively  to  the  national  courts.  These  are  the  treaties 
regarding  private  international  law  in  the  general  sense,  copy- 
rights, trade-marks,  civil  procedure,  and  private  international 
law  proper.  Now,  the  jurisdiction  which  one  nation  exercises 
over  the  subjects  of  another  nation  may  be  contested  as  being 
contrary  to  the  wording  and  the  spirit  of  the  treaty.  What 
would  be  the  effect  of  an  arbitral  award  in  such  a case?  Article 
16f  says  that  it  will  not  have  retroactive  effect.  This  goes 
without  saying.  But  the  article  adds  that  the  award  will 
have  an  “interpretative  value.”  This  means  that  the  national 
courts  will  have  to  conform  to  it.  Now,  the  courts  will  not 
accept  the  interpretation  as  authentic  unless  the  award  has  the 
force  of  law.  Here  is  the  same  problem,  only  graver,  for  it  is 
a question  of  the  prestige  and  authority  of  the  national  courts. 
It  is  desired  to  call  upon  two  entirely  separate  jurisdictions  to 
interpret  the  same  matter,  and  the  national  courts,  which  are  a 
permanent  organization  surrounded  by  every  kind  of  guarantee, 
are  asked  to  submit  in  future  to  the  interpretation  given  by  the 
arbitral  court,  which  is  a product  of  the  moment  and  disappears 
after  the  award  has  been  rendered.  This  is  politically  and 
legally  impossible.  If  private  international  law  which  was 
almost  unknown  fifty  years  ago,  continues  to  grow  as  rapidly 
as  it  has  within  the  last  two  decades,  it  will  become  necessary 
some  day  to  provide  for  a uniform  application  of  the  stipulations 


COMPULSOEY  ARBITRATION  AT  THE  CONFERENCE  357 


relating  thereto.  It  may  then  perhaps  be  decided  to  create  a 
high  international  court,  not  of  arbitration, but  of  appeal,  exer- 
cising jurisdiction  in  matters  relating  to  private  international 
law  with  the  same  guarantees  and  the  same  powers  as  our  su- 
preme courts  of  justice.  This  idea  is  one  for  future  considera- 
tion, but  I mention  it  in  order  to  bring  out  more  clearly  the 
impossibility  of  this  article,  which  complicates  the  question 
instead  of  deciding  it  and  runs  the  risk  of  grafting  upon  an  inter- 
national dispute,  already  existing,  a national  one  between  the 
various  constitutional  powers  of  the  nation.  I submit  these 
considerations  to  the  serious  reflection  of  all  political  students. 

I will  now  take  up  the  agreement  to  arbitrate.  This  is 
another  touchstone  of  the  compulsory  character  of  arbitration. 
In  order  to  go  to  The  Hague  it  is  necessary  to  pass  through 
a regularly  closed  door.  We  read  on  this  door  the  inscription 
“Agreement  to  Arbitrate.”  There  are  two  keys  to  the  door, 
each  of  the  parties  at  variance  holding  one.  If  they  agree  to 
open  the  door,  they  go  through,  but  if  not  they  return  the  way 
they  came,  and  the  controversy  remains  unsettled.  The  pas- 
sage through  this  door  and  consequently  the  journey  to  The 
Hague  are  thus  purely  optional.  The  German  delegation  tried 
to  give  to  so-called  compulsory  arbitration  the  character  of  a 
pactum  de  contrahendo  (agreement  to  contract).  For  this  pur- 
pose we  desired  to  grant  to  one  party  the  right  to  compel  an 
agreement  to  arbitrate.  We  did  not  have  the  success  hoped 
for  and  to  my  keen  regret  I saw  fervent  advocates  of  compul- 
sory arbitration  in  the  ranks  of  our  adversaries.  I can  therefore 
but  repeat  what  I said  to  the  committee,  namely,  that  in  uni- 
versal compulsory  arbitration  the  obligation  shows  out  plainly 
on  the  paper  but  disappears  the  minute  it  is  to  take  effect. 
But  this  is  not  all.  It  may  happen  that  the  two  parties  have 
harmoniously  concluded  the  agreement  to  arbitrate  but  sud- 
denly find  themselves  in  front  of  another  barrier  labeled  “ Con- 
stitution.” The  guardian  of  this  barrier  is  a legislative  body, 
which  opens  or  shuts  it  at  will  and  is  not  subject  to  any  control  by 
the  government  of  the  nation.  As  far  as  the  party  is  concerned 
which  is  compelled  by  its  constitution  to  pass  through  this 
barrier,  the  vinculum  juris  does  not  begin  until  the  latter  is 
passed,  while  for  the  other  party  it  is  created  by  the  agreement 
to  arbitrate.  This  is  a curious  solution  of  the  matter.  Much 
has  been  said  in  the  Conference  with  regard  to  the  equality  of 
the  Powers,  and  now  we  wish  to  establish  a clause  which  sanc- 
tions a manifest  inequality  between  the  contracting  Powers. 
I am  not  indulging  in  criticism;  I am  merely  stating  a fact. 

Having  thus  gone  through  the  whole  project,  I come  to  my 
conclusions.  This  project  has  a defect  which,  according  to  my 
experience,  is  the  worst  that  can  exist  in  laws  or  contracts. 


358 


THE  HAGUE  PEACE  CONFERENCES 


namely,  that  of  making  promises  which  it  cannot  fulfill.  It 
calls  itself  compulsory,  but  it  is  not.  It  boasts  of  constituting 
a step  in  advance,  but  it  does  nothing  of  the  kind.  It  claims 
to  be  an  effective  means  of  settling  international  disputes,  and 
in  reality  it  foists  upon  our  international  law  a series  of  problems 
of  interpretation  which  will  often  be  more  diflficult  to  settle 
than  the  original  controversies  and  which  will  even  be  likely  to 
embitter  the  latter.  It  is  said  that  this  project  wins  for  the 
world  the  principle  of  compulsory  arbitration.  This  is  not  so, 
for  this  principle  has  already  been  won  in  theory  by  the  unani- 
mous sentiments  of  the  peoples  and  in  practice  by  long  and  ever- 
increasing  series  of  individual  treaties.  Germany,  which  still 
hesitated  eight  years  ago,  has  concluded,  on  the  basis  of  the 
individual  system,  treaties  of  compulsory  arbitration  in  a gen- 
eral manner  and  on  particular  subjects.  She  will  continue  the 
same  course  in  future.  Today’s  vote  will  therefore  not  be  on 
the  question  whether  compulsory  arbitration  is  to  be  adopted 
for  the  world  or  not,  but  whether  we  shall  adhere  to  the  individ- 
ual system,  which  has  stood  its  test,  or  introduce  the  universal 
system  whose  vitality  is  not  yet  proved.  I shall  vote  against 
the  latter  proposition  for  the  reasons  which  I have  just  stated.* 

Of  the  many  replies  to  Baron  MarschaU’s  criticism  of  the 
general  treaty  of  arbitration  three  stand  out  in  full  relief, 
and,  judging  from  the  applause  with  which  they  were  received, 
it  is  probable  that  the  partisan  of  arbitration  will  accept  them 
now  as  then  as  the  ablest  presentation  of  their  views.  I 
refer  to  the  addresses  of  Messrs.  Renault,  Choate  and  Sir 
Edward  Fry,  and  regret  that  I can  only  quote  them  in  part. 

In  his  opening  remarks  M.  Renault  asked; 

Does  the  project  of  the  committee  really  deserve  all  the  re- 
proaches which  have  been  made  against  it? 

After  stating  that  a general  arbitration  treaty  for  certain 
classes  of  controversies  was  unanimously  considered  as  possi- 
ble, M.  Renault  then  said: 

The  question  is  whether  there  is  an  insurmountable  barrier 
between  this  system  and  the  system  which  will  extend  arbi- 
tration to  all  the  nations. 

In  propounding  this  question,  I do  not  mean  to  say  that  such 
arbitration  should  be  concluded  on  the  same  basis  as  with  some 

* La  Deuxieme  Conference  Internationale  de  la  Paix,  1907,  Vol . II, 
Plenary  Session,  First  Commission,  4th  Session,  October  5,  1907. 


COMPULSOKY  AEBITKATION  AT  THE  CONFERENCE  359 


particular  nation.  The  engagement  assumed  may  be  more  or 
less  strict,  without  the  system  losing  its  reality. 

If  arbitration  were  proposed  without  any  reservations,  I real- 
ize the  risk  which  might  be  run. 

However,  in  the  first  place  we  only  enter  engagements  with 
nations  with  which  we  have  already  concluded  other  conven- 
tions. The  work  of  The  Hague  consists  precisely  in  signing 
such  conventions  with  a large  number  of  nations.  This  shows 
that  we  deem  them  capable  of  understanding  the  conditions 
of  an  engagement  as  well  as  ourselves  and  of  conforming  thereto. 

The  question  is  whether  we  run  a risk  by  consenting,  in  the 
first  place,  to  be  bound  toward  these  nations  in  the  manner 
prescribed  in  Article  16a,  according  to  which  disputes  of  a 
legal  nature  and  especially  such  as  relate  to  the  interpretation 
of  treaties  shall  be  submitted  to  arbitration  with  certain  reser- 
vations. The  ardor  of  our  contradictors  has  been  exercised 
against  the  elasticitj  of  these  reservations,  namely,  honor, 
vital  interests,  and  the  nonlegal  nature  of  the  dispute,  which 
it  has  been  said  are  but  so  many  pretexts  to  render  the  engage- 
ments illusory.  This  article  may  be  summed  up  in  two  words: 
“Thou  shalt”  ....  “If  thou  wilt.” 

Nevertheless  these  same  reservations,  these  same  terms,  are 
used  in  texts  which  are  worthy  of  some  consideration. 

The  Convention  of  1899  already  speaks  of  questions  of  a 
“legal  nature.” 

Since  then,  numerous  special  conventions  have  embodied 
the  provisions  of  Article  16a,  notably  the  Anglo-German  gen- 
eral arbitration  treaty  of  May,  1904.  If  these  expressions 
have  any  meaning  in  special  conventions  concluded  between 
two  nations,  why  should  they  lose  their  natural  sense  and  no 
longer  mean  anything  at  all  because  applied  simultaneously  to 
a larger  number  of  nations? 

Does  all  obligation  cease  to  exist  on  account  of  these  reser- 
vations? I presume,  nevertheless,  that  in  signing  their  arbitra- 
tion treaty  England  and  Germany  meant  to  obligate  them- 
selves in  some  manner.  The  reality  is  this:  we  calculate  to 
bind  ourselves  to  the  extent  which  our  vital  interests  are  not 
at  stake.  However  much  the  obligation  seems  to  be  reduced, 
it  still  exists,  and  a country  will  look  twice  before  claiming 
that  there  is  a vital  question  where  there  is  none. 

It  is  in  this  sense  that  I understand  the  first  two  articles  of 
the  project. 

Is  this  an  empty  and  meaningless  statement? 

I do  not  think  so.  Of  course,  we  do  not  naively  pretend  that 
we  will  avoid  a war  by  means  of  arbitration  understood  in  this 
manner  and  expressed  in  this  form,  but  we  shall  accustom 
peoples  gradually  to  subject  their  normal  relations  to  legal  rules. 


360 


THE  HAGUE  PEACE  CONFERENCES 


It  is  something  to  settle  petty  international  questions  by  justice 
instead  of  by  force.  If  the  more  important  questions  are  not 
submitted  to  arbitration,  the  little  disputes  arising  in  the  daily 
life  of  nations  will  be.  In  this  manner  may  be  settled  immedi- 
ately slight  controversies  which  often  become  embittered  and 
aggravated.  Above  all,  the  habit  will  be  thus  acquired  of 
resorting  to  aroitral  justice  and  this  habit  can  only  he  encouraged 
by  increasing  the  number  and  importance  of  the  cases  to  be 
settled  in  this  manner. 

I now  come  to  the  list  and  the  table.  It  has  been  recognized 
that  the  basis  of  this  latter  is  purely  legal  in  character. 

To  be  sure,  it  is  a new  system,  but  it  is  also  a new  thing  to 
contract  engagements  with  forty-five  nations.  We  must  not 
be  frightened  at  innovations  in  this  epoch  of  wireless  telegraphy. 
This  table  is  very  ingenious,  for  it  enables  the  cases  of  compul- 
sory arbitration  to  be  recorded  automatically  and  indicates 
immediately  and  without  search  whether  two  nations  are  obli- 
gated towmrd  one  another  in  a given  case. 

As  to  the  list,  it  has  been  criticised  in  one  word,  namely,  that 
it  is  an  “anodyne”  list. 

One  of  the  cases  embodied  in  this  list  is  far  from  being  insig- 
nificant, and  M.  Drago  very  clearly  pointed  out  the  practical 
importance  of  this  case.  It  relates  to  the  fixing  of  the  amount 
of  pecuniar}^  indemnity  when  the  responsibility  of  the  debtor 
nation  is  recognized.  Is  it  not  natural  that  arbitration  should 
be  applied  to  difficulties  of  this  kind,  which,  without  jeopard- 
izing any  vital  interest,  require  an  equitable  settlement? 

It  is  true  that,  along  with  this  case,  there  are  some  “anodyne” 
cases  which  might  be  joked  about. 

But  this  is  explainable.  The  purpose  is,  as  I have  alread}’' 
stated,  to  regulate  the  relations  of  the  daily  life  of  peoples,  and 
to  accustom  them  to  the  use  of  arbitration  first  by  means  of 
cases  of  minor  importance.  If  the  habit  is  acquired,  and  the 
procedure  seems  convenient,  the  number  of  cases  may  be  in 
increased,  and,  perhaps,  this  increase  may  take  place  auto- 
matically. 

With  regard  to  certain  cases  on  the  list,  the  difficulties  have 
been  spoken  of  which  w'ould  be  caused  by  arbitral  awards  in 
the  system  of  “universal  unions.” 

“You  will  create  a diversity  of  jurisprudence,”  it  has  been 
said,  “and  you  will  consequently  bring  about  the  dissolution  of 
these  unions.” 

In  a word,  it  has  been  supposed  that  the  arbitral  awards 
would  vary.  This  does  not  show  a very  high  degree  of  confi- 
dence in  the  arbitrators.  Why  should  they  have  a tendency  to 
render  contradictory  awards?  Why  not  trust  to  them?  Uni- 
formity of  interpretation  is  just  as  probable  if  not  more  so  in  the 
case  of  arbitrators  as  in  that  of  national  judges. 


COMPULSORY  ARBITRATION  AT  THE  CONFERENCE  361 


I had  always  thought,  on  the  contrary,  that  the  employ- 
ment of  arbitration  was  especially  appropriate  in  connection 
with  the  “ universal  unions.”  The  fields  covered  by  these  unions 
being  very  vast,  the  interpretation  given  to  them  in  one  part 
of  the  world  may  be  different  from  that  given  them  in  another. 
Are  there  not  great  reasons  for  restoring  uniformity,  and  can  this 
be  accomplished  by  any  more  convenient  method  than  arbitra- 
tion? What  would  be  the  good  of  having  established  uniform- 
ity in  the  rules  themselves  if  diversity  prevailed  in  their  appli- 
cation? 

The  answer  to  be  given  is  that  of  the  common  law.  The 
decision  rendered  is  binding  as  between  the  parties,  but  between 
them  only. 

Moreover,  the  Convention  of  1899  provides  a means  of  facil- 
itating uniformity.  The  nations  not  a party  to  the  dispute 
are  to  be  notified  and  may  participate  in  the  arbitration  which 
takes  place  between  two  nations.  If  they  do  not  participate, 
the  award  shall  be  binding  only  on  the  two  parties. 

Would  this  increase  the  confusion?  I do  not  believe  so. 
The  arbitral  award  has  a certain  effect,  and  that  is  to  insure  a 
uniformity  of  interpretation  between  two  nations.  Without 
the  arbitration,  each  one  might  have  its  own  individual  inter- 
pretation. The  award  therefore  certainly  enables  an  approach 
to  be  made  to  uniformity,  and  if  it  is  not  binding  on  all  in  all 
cases,  it  will  at  least  have  a certain  moral  effect  on  the  parties 
and  on  jurisprudence,  and  this  alone  is  better  than  nothing. 

It  has  been  thought  to  discern  another  inextricable  difficulty 
in  case  of  an  arbitral  award  rendered  on  a question  regarding 
which  judicial  decisions  have  already  been  rendered. 

Might  there  not  be  in  this  case  an  impairment  of  the  auton- 
omy of  the  national  courts? 

In  the  first  place,  it  appears  certain,  in  common  law,  that 
the  decision  of  a court  cannot  be  modified  retroactively.  The 
only  character  that  the  arbitral  award  could  have  would  be  an 
interpretative  one  for  the  future.  Could  such  a character  as 
this  endanger  the  authority  of  the  national  courts?  I do  not 
believe  so.  It  often  happens  that  in  nations  themselves  inter- 
pretative laws,  to  which  the  courts  of  the  nation  must  conform, 
are  promulgated  because  of  the  existence  of  a jurisprudence 
which  is  considered  to  be  contrary  to  the  spirit  of  the  law. 
May  we  not  suppose  that  the  same  thing  will  have  to  be  done  in 
the  case  of  a jurisprudence  considered  to  be  contrary  to  an 
international  convention?  The  country  whose  citizens  suffer 
from  this  jurisprudence  will  demand  arbitration.  The  authentic 
interpretation  will  be  given  by  the  award  and  the  necessary 
measures  will  have  to  be  taken  so  that  this  interpretation  may 
have  the  force  of  law  in  the  future.  Wherein  would  the  prestige 
of  the  national  courts  be  affected  by  this? 


362 


THE  HAGUE  PEACE  CONFERENCES 


Baron  von  Marschall  said  that  Germany  thought  of  estab- 
lishing in  the  future  a court  of  justice  whose  decisions  could 
quash  those  of  the  national  courts.  We  shall  have  time  to 
think  the  matter  over.  But  I wonder  whether  the  national 
courts  will  not  then  feel  themselves  more  affected  than  with 
the  present  common  law  and  the  operation  of  compulsory  arbi- 
tration as  I have  just  explained  it. 

It  has  also  been  asked  how  the  award  would  be  executed  in 
case  the  cooperation  of  the  legislative  body  is  necessary  for  its 
execution. 

This  is  the  general  problem  of  the  relations  of  international 
law  with  the  constitutional  law  of  the  nations.  Is  it  for  us  to 
ask  here  what  method  should  be  employed  by  a country  in 
order  to  give  force  of  law  to  an  arbitral  award? 

As  regards  the  question  of  the  agreement  to  arbitrate,  which 
is  a problem  of  the  same  character,  I have  already  had  occa- 
sion to  explain  myself.  If  it  were  pretended  that  an  agreement 
to  arbitrate  should  be  concluded  only  under  conditions  of  abso- 
lute equality,  I do  not  see  many  cases  in  which  such  an  agree- 
ment could  be  reached.  This  could  only  be  imagined  to  take 
place  between  absolute  sovereigns,  capable  by  themselves  of 
assuming  the  engagement  and  executing  it. 

In  the  case  of  the  majority  of  nations,  there  are  always  times 
when  it  is  necessarj^  to  refer  to  some  other  Power  than  the  one 
which  contracted  the  enaagement.  The  agreement  to  arbitrate, 
and  the  ratification  and  execution  of  the  awards  require,  accord- 
ing to  the  various  cases,  the  cooperation  of  a legislative  body 
without  which  the  engagement  entered  into  by  the  executive 
is  imperfect. 

I will  recall  two  celebrated  cases  in  this  connection.  The 
first  is  that  of  the  Treaty  of  May  8,  1871,  for  the  settlement  of 
the  so-called  "Alabama  claims.”  The  agreement  to  arbitrate, 
which  was  of  capital  importance  in  this  case,  had  to  be  approved 
by  the  American  Senate.  In  England,  on  the  contrary,  the 
Crown  was  able  to  sign  it  without  referring  to  Parliament. 
But  when  it  was  necessary  to  execute  the  award  of  the  Geneva 
court  and  pay  the  fifteen  and  a half  million  dollars  the  Crown 
could  do  nothing  without  the  consent  of  the  Houses.  The  exe- 
cution of  the  award  was  therefore  at  the  mercy  of  a parlia- 
mentary vote.  There  are  thus  always  times  when  it  is  neces- 
sary to  trust  to  the  good  faith  of  the  other  party,  for  in  almost 
all  countries  it  would  be  easy  for  the  latter  to  elude  the  engage- 
ment by  taking  shelter  behind  the  opposition  of  the  legislative 
body. 

Another  no  less  convincing  case  is  found  in  the  arbitration 
which  took  place  between  the  United  States  and  France  under 
the  Monarchy  of  July.  The  French  Government  had  con- 


COMPULSORY  ARBITRATION  AT  THE  CONFERENCE  363 


eluded  with  the  United  States  a convention  by  virtue  of  which 
the  sum  of  twenty-nine  millions  was  to  be  paid  to  the  United 
States.  The  convention  had  been  ratified  by  the  Crown  with- 
out the  consent  of  Parliament,  which,  according  to  the  charter 
of  1830,  was  not  required  in  such  a case.  When  it  was  necessary 
to  obtain  the  money,  the  Chamber  of  Deputies  refused  to  give  it 
to  the  Ministry.  The  Government  by  no  means  considered  itself 
relieved  from  its  obligation.  A new  Ministry  was  formed  and 
the  sum  appropriated  and  paid. 

These  two  facts  show  that  there  is  danger  that  an  obligation 
arising  from  an  award  or  arbitration  treaty  may  not  be  fulfilled. 
But  must  no  obligation  ever  be  undertaken  because  of  this 
danger?  If  this  is  the  case,  no  agreement  should  ever  be  made 
with  any  one  on  any  subject. 

It  is  pointed  out  that  the  United  States  Senate  has  refused  to 
ratify  certain  arbitration  treaties.  This  proves  nothing.  One 
is  always  free  to  conclude  a contract  or  not,  as  one  sees  fit. 
It  is  necessary  to  find  a case  in  which  a contract  entered  into 
has  not  been  fulfilled.  To  my  knowledge  there  is  no  case  of  this 
kind  in  existence.  As  regards  the  question  why  the  Washing- 
ton Cabinet  gave  up  concluding  certain  arbitration  treaties  in 
consequence  of  the  .demands  of  the  Senate  with  regard  to  the 
agreement  to  arbitrate,  this  is  a matter  of  national  policy  and 
is  not  up  for  our  consideration. 

What  we  must  remember  is  that  the  arguments  adduced  with 
regard  to  the  United  States  may  apply  to  all  constitutional 
countries. 

Such  are,  gentlemen,  the  various  reasons  why  I think  that 
the  project  submitted  to  you  deserves  your  approval.^ 

Mr.  Choate  accepted  Mr.  Renault’s  argument  as  conclusive 
of  the  law  points  involved.  He  therefore  dealt  with  Baron 
Marschall’s  preference  for  individual  or  special  treaties;  his 
rejection  of  the  general  treaty  and  discovered  the  reason  to 
be  an  unwilhngness  to  renounce  the  use  of  force  in  contro- 
versies with  certain  unspecified  nations: 

If  we  yield  to  the  suggestions  of  the  First  Delegate  of  Ger- 
many, it  is  absolutely  necessary  for  us  to  limit  ourselves  to 
individual  treaties  with  each  other  and  to  come  to  a dead  stop 
at  the  very  suggestion  of  a general  mondial  arbitration  agree- 
ment. . . . Why  cannot  a nation  which  is  ready  to  enter  into 
an  arbitration  agreement  or  agreements  as  to  certain  subjects 
with  twenty  other  States,  come  to  a similar  agreement  with  all 

' La  Deuxi^me  Coiif4rence  Internationale  de  la  Paix,  1907,  Vol.  II, 
Plenary  Session,  First  Commission,  5th  Session,  October  5,  1907. 


364 


THE  HAGUE  PEACE  CONFERENCES 


the  forty-five  if  such  is  the  imperative  desire  of  the  nations? 
Let  Germany  answer  the  question.  The  rest  of  us  are  ready 
to  conclude  a general  convention  in  this  sense  because  we  have 
absolute  confidence,  each  of  us,  in  all  the  other  nations.  We 
respect  the  equality  of  all  the  other  Powers  upon  the  basis  upon 
which  they  are  represented  and  on  which  they  exercise  suffrage 
in  the  Conference.  We  recognize  by  their  conduct  here,  their 
equal  manhood,  intelligence,  independence  and  good  faith. 
There  are  really  two  questions  here — one  of  confidence  or  good 
faith,  and  the  other  of  a resort  to  force 

We  have  learned  much  in  the  protracted  labors  of  the  Con- 
ference, but  the  best  thing  that  we  have  learned  is  this  confi- 
dence in  each  other,  and  how  the  nations  who  have  united  in 
its  labors  are  entitled  to  equal  credit  for  honest  intention  and 
good  faith. 

Now  as  to  the  question  of  the  reservation  of  the  right  or  the 
purpose  to  resort  to  force,  which  is  the  only  other  reason  that 
I can  conceive  of  for  declining  to  join  in  a general  arbitration 
agreement  on  the  part  of  those  who  are  ready  to  accomplish 
the  same  thing  by  individual  treaties.  The  idea  of  the  opposi- 
tion, as  I understand  it,  is  that  we  should  maintain  our  right 
to  select  our  own  company,  and  not  be  compelled  to  admit  all 
the  nations  into  a general  agreement  with  us.  But  suppose 
you  do  agree  with  twenty  nations  and  conclude  such  treaties 
with  that  limited  number,  either  separately  or  jointly,  what 
do  you  mean  to  do  with  regard  to  the  twenty-five  other  nations 
whom  you  will  have  refused  to  admit  into  your  charmed  circle 
of  arbitral  accord?  You  must  reserve,  must  you  not,  you  must 
mean  to  reserve  the  right  to  resort  to  war  against  the  twenty- 
five  non-signatory  States,  when  differences  with  them  cannot 
be  settled  by  diplomatic  means?  Those  are  the  two  alternative 
ways — arbitration  or  force.  And  if  you  will  not  agree  to  arbi- 
tration, it  must  be  because  you  reserve  the  right,  if  not  the 
intent,  to  resort  to  force  with  them.  But,  gentlemen,  empires 
and  kingdoms,  as  well  as  republics,  must  sooner  or  later  yield 
to  the  imperative  dictates  of  the  public  opinion  of  the  world. 
Every  power,  great  or  small,  must  submit  to  the  overwhelming 
supremacy  of  the  public  will,  which  has  already  declared  and 
will  hereafter  declare,  more  and  more  urgently,  that  every  un- 
necessary war  is  an  unpardonable  crime,  and  that  every  war 
is  unnecessary  when  a resort  to  arbitration  might  have  settled 
the  dispute.  These  are  the  two  alternatives  between  which  the 
opponents  of  our  project  must  finally  choose 

After  the  masterful  discourse  of  M.  Renault  to  which  we 
have  just  listened,  there  remain  very  few  points  for  me  to  make 
clear.  Baron  Marschall  is  of  opinion  that  the  term  “ questions 
of  a juridical  nature”  is  obscure.  But,  during  the  discussion 


COMPULSORY  ARBITRATION  AT  THE  CONFERENCE  365 


of  the  even  more  important  projet  relative  to  the  establishment 
of  the  Cour  de  Justice  Arbitrale,  in  which  he  was  our  cordial 
colaborer,  this  difficulty  was  not  raised. 

It  may  be  at  times  difficult  to  distinguish  a juridical  ques- 
tion from  a political  question,  but  the  difficulty  is  the  same  in 
the  application  of  individual  treaties  as  in  that  of  a general 
treaty,  and  this  objection,  like  almost  all  the  others  which  Baron 
Marschall  has  raised,  applies  equally  to  both  kinds  of  treaties. 

Again  it  has  been  urged,  in  support  of  the  position,  that  a 
nation  may  make  a general  treaty  with  twenty  States  and  yet 
refuse  to  extend  it  to  the  forty-five,  that  the  same  difference 
arising  between  A and  B may  be  of  a juridical  nature,  and  aris- 
ing between  C and  D may  bear  a pohtical  character.  Our 
projet  contains  in  itself  the  reply  to  that  objection.  If,  on 
the  difference  arising  between  A and  B,  the  question  is  of  a 
juridical  character,  the  treaty  by  its  very  terms  will  apply. 
If  the  same  question  when  it  arises  between  C and  D proves 
to  be,  as  it  is  claimed  that  it  may  be,  a political  question,  the 
very  terms  of  the  treaty  will  exclude  it. 

The  only  reason  why  M.  Baron  Marschall  prefers  individual 
treaties  to  a mondial  treaty,  is  that  the  latter  does  not  leave 
to  each  party  the  choice  of  its  co-signataries.  To  this  I answer: 
“ The  whole  matter  is  one  of  mutual  confidence  and  good  faith. 
There  is  no  other  sanction  for  the  execution  of  treaties.  If 
we  have  not  confidence  one  with  another,  why  are  we  here?” 
There  is  no  other  rule  among  us  than  that  of  mutual  good  faith. 
That  is  the  only  compelling  power  which  can  restrain  or  enforce 
our  conduct  as  nations.  If  we  feel  that  we  cannot  trust  each 
other  that  is  a conclusive  reason  for  refusing  to  enter  into  treaties 
of  arbitration  with  the  rest.  If  we  can,  it  is  our  solemn  duty 
to  do  so,  and  thereby  substitute  arbitration  for  war,  as  the  world 
demands.  .... 

If  we  begin  now  with  a restricted  number  of  obligatory  arbi- 
tration cases,  as  our  project  proposes,  there  is  no  doubt  that 
before  the  next  Conference  meets  the  number  will  be  consid- 
erably augmented  by  additions  under  the  article  providing 
for  a supplementary  protocol.  At  the  same  time,  it  is  clear 
that  a mondial  treaty  will  not  prevent  the  Powers  from  contin- 
uing to  conclude  among  themselves  individual  conventions 
of  arbitration,  under  all  of  which  the  same  inevitable  necessity 
for  a compromis  will  always  recur.  But  in  signing  a mondial 
convention,  does  a nation  renounce  absolutely  the  choice  be- 
tween arbitration  and  force?  If  one  of  the  parties  should 
refuse  to  conclude  the  compromis  or  to  execute  the  award, 
the  other  has  always  the  same  right  of  recourse  to  force,  which 
it  ever  had  if  no  treaty  had  been  made.  In  that  case  the  only 
question  will  be  whether  it  will  venture  upon  that  extreme 


366 


THE  HAGUE  PEACE  CONFERENCES 


remedy,  in  defiance  of  public  opinion,  or  will  have  patience 
still,  and  make  fimther  amicable  efforts  to  bring  the  adversary 
to  reason 

Mr.  Choate  then  referred  to  and  commented  upon  Baron 
MarschalFs  illustration  drawn  from  the  “closed  door”  and 
then  continued  as  follows: 

A sufficient  reply  has  been  given  by  M.  Renault.  It  is  not 
a question  of  knowing  whether  there  are  several  keys,  but 
whether  the  door  is  open  or  closed.  From  the  moment  when 
the  arbitration  treaty  is  concluded,  each  party  is  bound  to 
unlock  the  door  for  both  to  pass  through  upon  reasonable  terms. 
One  party  cannot  settle  for  the  other  what  terms  are  reasonable 
and  until  both  parties  agree,  the  compromis  is  not  settled  and 
the  door  is  not  open,  whether  the  settlement  of  the  compromis 
and  of  the  opening  of  the  door  depends  on  the  Senate,  an  ex- 
ecutive council,  a parliament,  a sovereign  or  any  other  admin- 
istrative entity.  Always,  as  I have  so  frequently  insisted,  it 
is  a question  of  good  faith  of  the  action  of  the  Government  on 
either  side,  however  that  Government  is  constituted.  Arbitra- 
tion is  concluded,  not  between  two  or  more  underlying  admin- 
istrations of  government,  but  between  the  two  States,  between 
the  two  Powers,  as  distinct  national  entities,  and  the  carrying 
out  of  every  step  is  between  them. 

This  atmosphere  of  mistrust  or  distrust,  in  which  it  has 
been  sought  to  envelope  the  whole  question,  ought  to  be  cleared 
away.  It  is  the  most  noxious  atmosphere  in  which  interna- 
tional questions  can  be  discussed  in  an  international  conference 
and  it  ought  to  give  place  to  the  mutual  spirit  of  abiding  confi- 
dence and  good  will.  For  the  Government  that  I represent, 
I can  best  dispel  it  by  a reference  to  our  past,  which  answers 
more  eloquently  than  any  words  of  mine  can  do,  all  the  objec- 
tions that  have  been  raised.  During  the  last  fifty  years,  the 
United  States  have,  I believe,  concluded  as  many  treaties  of 
arbitration  as  any  other  power,  and  never  in  one  instance  has  it 
failed  to  conclude  the  compromis  required  by  the  treaty. 
From  the  moment  the  arbitration  agreement  has  been  entered 
into  which  required  the  compromis,  it  has  regarded  the  making 
of  it  on  reasonable  terms  as  a national  necessity  and  the  im- 
perative requirement  of  good  faith.  And  should  it  continue 
as  a nation  for  a thousand  years  to  come,  it  will  never  fail  to 
honor  its  engagements,  and  the  Senate,  in  the  future  as  in  the 
past,  will  ever  be  ready  to  complete  the  compromis  in  the  spirit 
that  the  treaty  requires.^ 

^ La  Deuxi^me  Conference  Internationale  de  la  Paix,  1907,  Vol . II,  Ple- 
nary Session,  First  Commission,  5th  Session,  October  5,  1907. 


COMPULSORY  ARBITRATION  AT  THE  CONFERENCE  367 


Sir  Edward  Fry  was  always  listened  to  with  marked  atten  • 
tion,  not  merely  because  he  worthily  represented  Great  Bri- 
tain, the  mother  of  constitutional  liberty,  nor  because  of  the 
simplicity,  sincerity  and  absolute  straightforwardness  of  his 
views  and  his  speech,  but  because  as  an  able  lawyer  and  dis- 
tinguished judge  of  the  highest  courts  of  his  country,  his 
utterances  in  matters  of  law  were  as  convincing  as  they  were 
authoritative.  It  was  therefore  peculiarly  pleasing  to  learn 
from  his  lips  that  morality  was  higher  than  law,  and  that  the 
vinculum  juris,  for  which  the  German  delegation  showed  a 
marked  affection,  did  not  control  nations  in  their  foreign 
relations.  Sir  Edward  said  in  part : 

1.  Arbitration  in  all  its  forms  derives  its  origin  from  the 
free  consent  of  the  Powers  in  dispute,  and  the  only  difference 
between  so-called  compulsory  arbitration  and  optional  arbitra- 
tion consists  in  the  circumstance  that  the  consent  is  given  in 
advance  in  the  former  case  while  in  the  latter  it  is  given  after 
the  dispute  arises.  In  either  case  it  is  only  a question  of  a 
sovereign  act  on  the  part  of  the  Powers  at  variance,  which  by 
no  means  affects  the  independence  of  these  Powers  any  more 
than  a contract  concluded  affects  the  independence  of  the  con- 
tracting party. 

National  laws  recognize  the  utility  of  an  agreement  made 
for  the  purpose  of  settling  a difference  and  drawn  up  before 
the  latter  occurs,  provided  such  agreement  relates  only  to  dif- 
ferences whose  nature  can  be  foreseen.  Why  cannot  an  interna- 
tional law  follow  the  same  course  of  development  as  a national 
law  in  this  as  well  as  in  other  cases? 

2.  I admit  that  it  may  be  said,  and  not  without  reason, 
that  in  view  of  the  reservations  and  the  power  of  denunciation 
stipulated  in  the  project,  the  compulsory  character  of  the  con- 
vention is  not  very  pronounced  and  the  vinculum  juris  may 
be  broken  without  difficulty.  But,  I repeat,  the  nations  of 
the  world  do  not  allow  themselves  to  be  guided  solely  by  legal 
theories  or  bound  by  vincula  juris,  and  I consider  that  the 
convention,  however  weak  it  may  be  from  a legal  standpoint, 
will  nevertheless  have  a great  moral  value  as  an  expression  of 
the  conscience  of  the  civilized  world. 

A law  made  by  a people  is  inseparably  connected  with  the 
moral  idea  which  inspired  it.  We  cannot  divorce  the  moral 
idea  from  the  law  which  expresses  it.  It  is  certain  that,  just 
as  a law  which  is  not  supported  by  universal  consent  can  be  of 
no  utility,  a moral  idea  gains  by  being  embodied  in  a law.  . . 1 

‘La  Deuxifeme  Coiif4rence  Internationale  de  la  Paix,  1907,  Vol.  II’ 
Plenary  Session,  First  Commission,  5th  Session,  October  5th,  1907. 


368 


THE  HAGUE  PEACE  CONFERENCES 


It  has  been  said  that  the  project  as  presented  was  unshaken 
by  the  opposition,  but  it  was  modified  in  certain  particulars 
by  the  commission.  For  example,  16f: 

It  is  understood  that  arbitral  sentences,  so  far  as  they  relate 
to  questions  concerning  the  competence  of  national  justice,  shall 
only  have  an  interpretative  value,  without  any  retroactive 
effect  upon  previous  judicial  decisions, 

was  stricken  from  the  project.  It  will  be  recalled  that  this 
article  had  had  a checkered  career.  The  proposition  of  the 
Fusinato  sub-committee  was  adopted  by  a vote  of  9 to  3 
in  the  committee  of  examination.  At  a later  date  the  Servian 
amendment  was  proposed  as  an  amendment  to  this  and  voted 
as  a substitute  although  the  two  articles  were  not  inconsistent. 
Some  States  were  in  favor  of  the  article  as  originally  presented 
by  M.  Fusinato,  others  were  in  favor  of  the  article  as  adopted 
by  the  committee  and  proposed  to  the  commission,  while  stiU 
others  were  opposed  to  the  principle  of  the  article  in  whatever 
form  expressed.  In  a spirit  of  friendly  compromise  the  article 
was  withdrawn  by  its  proposers.  This  seemed  to  open  a point 
of  attack  so  as  to  divide  an  otherwise  compact  majority,  an 
opportunity  taken  advantage  of  by  M.  Beldiman  on  behalf  of 
the  opposition,  who  proposed  that  the  article  as  originally 
drafted  by  M.  Fusinato  be  retained  in  the  convention.  A long 
discussion  ensued  with  the  result  that  the  article  in  its 
entirety  was  omitted  by  a vote  of  23  to  8,  and  12  abstentions. 

Upon  the  motion  of  the  American  delegation  the  third  para- 
graph of  16i  was  eliminated  because  it  seemed  inadvisable  to 
bind  a nation  to  an  interpretation,  merely  because  the  nation 
did  not  reject,  that  is,  maintained  silence  during  the  period  of 
one  year  within  which  it  was  to  express  its  opinion.^ 

Article  16k  providing  that  the  compromis  should  be  framed 
in  accordance  with  the  laws  and  constitutions  of  the  contract- 
ing States  was  the  subject  of  much  discussion  in  the  Committee 
of  Examination,  and  was  objectionable  not  merely  to  opponents 
of  compulsory  arbitration  but  to  some  of  its  most  pronounced 
friends.  An  effort  was  therefore  made  to  eliminate  the  article, 

‘Article  16g  of  the  final  project. 


COMPULSORY  ARBITRATION  AT  THE  CONFERENCE  369 


but  after  a spirited  debate  it  was  retained  by  a vote  of  26  to 
7,  with  9 abstentions.* 

The  committee  excluded  from  arbitration  controversies 
concerning  extraterritorial  rights.  This  provision  was  re- 
garded as  humiliating  to  China  and  the  countries  in  which 
extraterritoriality  exists.  China  therefore  proposed  that  the 
article  be  suppressed.  Sir  Edward  Fry,  on  the  contrary, 
insisted  that  the  article  be  maintained  and  stated  that  if 
it  be  eliminated  Great  Britain  would  exclude  from  arbitra- 
tion extraterritorial  questions  in  its  ratification  of  the  treaty. 
The  article  was,  however,  rejected  by  a large  majority.  Upon 
the  announcement  of  the  vote,  the  first  delegate  of  China 
declared  that  the  suppression  of  the  article  removed  all  objec- 
tions on  his  part  to  the  project  as  a whole  and  asked  that  his 
vote  be  recorded  affirmatively  on  each  of  the  previous  articles. 
The  British  protocol  providing  for  the  insertion  of  additional 
subjects  of  compulsory  arbitration  was  adopted  without  obser- 
vation or  vote. 

It  will  be  recalled  that  the  Committee  of  Examination 
adopted  by  a majority  vote  a list  of  seven  subjects  which 
might  safely  be  submitted  to  arbitration  without  invoking 
the  reserves  of  independence,  vital  interest  and  honor.  In  the 
commission  an  eighth  subject  was  added,  namely,  pecuniary 
claims  for  damages  when  the  principle  of  indemnity  is  recog- 
nized by  the  parties. 

The  president  of  the  Conference,  M.  de  Nelidow,  proposed 
that  the  Anglo-American  project  should  form  a separate  con- 
vention, that  is,  that  it  be  not  included  in  the  Convention  of 
1899  in  the  form  of  additional  articles  to  Article  16.  This 
motion  was,  after  discussion,  accepted  without  a vote. 

The  project  of  the  Committee  of  Examination,  slightly  mod- 
ified by  the  Commission,  was,  in  translated  form,  as  follows: 

Article  16  a 

Differences  of  a legal  nature  and,  primarily,  those  relating 
to  the  interpretation  of  treaties  existing  between  two  or  more 
of  the  contracting  nations,  which  may  arise  between  them  in 

'Article  16h  of  the  final  project. 


370 


THE  HAGUE  PEACE  CONFERENCES 


the  future  and  which  cannot  be  settled  by  diplomatic  means, 
shall  be  submitted  to  arbitration,  on  condition,  however,  that 
they  do  not  involve  the  vital  interests,  independence,  or  honor 
of  either  of  the  said  nations,  and  that  they  do  not  affect  the 
interests  of  other  nations  not  concerned  in  the  dispute. 

Article  16b 

It  shall  devolve  upon  each  of  the  Signatory  Powers  to  judge 
whether  the  difference  which  has  arisen  involves  its  vital  inter- 
ests, independence,  or  honor,  and,  consequently,  is  of  such  a 
nature  as  to  be  comprised  among  those  which,  according  to 
the  preceding  article,  are  excepted  from  compulsory  arbitration. 

Article  16c 

The  high  contracting  parties  recognize  that  certain  of  the 
differences  contemplated  in  Article  16  are  of  a nature  to  be 
submitted  to  arbitration  without  the  reservations  mentioned 
in  Article  16  a. 

Article  16d 

Following  out  this  idea,  they  agree  to  submit  the  following 
differences  to  arbitration: 

I.  Disputes  concerning  the  interpretation  and  application 
of  conventional  stipulations  relative  to  the  following  matters: 

1.  Reciprocal  gratuitous  aid  to  indigent  sick. 

2.  International  protection  of  workingmen. 

3.  Means  of  preventing  collisions  at  sea. 

4.  Weights  and  measures. 

5.  Measurement  of  vessels. 

6.  Wages  and  estates  of  deceased  sailors. 

7.  Protection  of  literary  and  artistic  works. 

II.  Pecuniary  claims  on  account  of  injuries,  when  the  prin- 
ciple of  indemnity  is  recognized  by  the  parties. 

Article  16e 

The  high  contracting  parties  decide  besides  to  annex  to  the 
present  convention  a protocol  enumerating: 

1.  The  other  matters  which  appear  to  them  to  be  susceptible 
at  present  of  forming  the  subject  of  an  arbitral  stipulation  with- 
out reserve; 

2.  The  Powers  which,  on  condition  of  reciprocity,  under- 
take this  engagement  among  themselves  right  now  with  regard 
to  one  or  more  of  these  matters. 

The  protocol  shall  also  specify  the  conditions  under  which 
may  be  added  the  other  matters  recognized  subsequently  as 
capable  of  forming  the  subject  of  arbitral  stipulations  without 


COMPULSOEY  ARBITKATION  AT  THE  CONFERENCE  371 


reserve,  as  well  as  the  conditions  under  which  the  non-signatory 
Powers  will  be  permitted  to  adhere  to  the  present  agreements 

‘ Protocol  referred  to  in  Article  16e  of  the  British  Proposition  relating  to 
Compulsory  Arbitration 

Article  1 

Each  Power  signing  the  present  Protocol  accepts  arbitration  without 
reserve  for  disputes  concerning  the  interpretation  and  application  of  con- 
ventional stipulations  relating  to  those  of  the  matters  enumerated  in  the 
annexed  table  which  are  indicated  by  the  letter  A in  the  column  bearing 
its  name.  It  declares  to  contract  this  engagement  with  respect  to  each 
of  the  other  Signatory  Powers  whose  reciprocity  in  this  regard  is  indicated 
in  the  same  manner  in  the  table. 

Article  2 

Each  Power  shall  always  have  the  privilege  of  announcing  its  acceptance 
of  the  matters  enumerated  in  the  table  and  for  which  it  has  not  previously 
accepted  arbitration  without  reserve  according  to  the  provisions  of  the 
foregoing  article.  For  this  purpose  it  shall  communicate  with  the  Neth- 
erlands Government,  which  shall  announce  the  acceptance  to  the  Inter- 
national Bureau  at  The  Hague.  After  having  inscribed  it  in  the  table 
referred  to  in  the  foregoing  article,  the  International  Bureau  shall  at  once 
communicate  certified  copies  of  the  notification  and  of  the  table  thus 
completed,  to  the  Governments  of  all  the  Signatory  Powers. 

Article  3 

Two  or  more  of  the  Signatory  Powers,  acting  in  common  accord,  may 
besides  address  the  Netherlands  Government  requesting  it  to  inscribe  in 
the  table  additional  matters  for  which  they  are  ready  to  accept  arbitration 
without  reserve  in  accordance  with  Article  1. 

The  inscription  of  these  additional  matters  and  the  communication  to 
the  Governments  of  the  Signatory  Powers  of  the  notification  as  well  as 
of  the  corrected  text  of  the  table,  shall  take  place  in  the  manner  provided 
in  the  foregoing  article. 

Article  4 

The  nonsignatory  Powers  shall  be  permitted  to  adhere  to  the  present 
protocol  by  notifying  the  Netherlands  Government  of  the  matters  in- 
scribed in  the  table  for  which  they  are  ready  to  accept  arbitration  without 
reserve  in  accordance  with  Article  1. — ^La  Deuxifeme  Conf4rence  Interna- 
tionale de  la  Paix,  1907,  Vol.  II,  Plenary  Session,  First  Commission,  5th 
Session,  October  5,  1907. 


372 


THE  HAGUE  PEACE  CONFERENCES 


Article  16f 

If  all  the  nations  signing  one  of  the  conventions  referred  to 
in  Articles  16c  and  16d  are  parties  to  a dispute  concerning  the 
interpretation  of  the  convention,  the  arbitral  award  shall  have 
the  same  weight  as  the  convention  itself  and  shall  be  likewise 
observed. 

If,  on  the  contrary,  the  dispute  arises  only  between  certain 
ones  of  the  Signatory  Nations,  the  parties  at  variance  shall 
notify  in  due  time  the  Signatory  Powers,  which  shall  be  entitled 
to  take  part  in  the  proceedings. 

The  award  shall  be  communicated  to  the  Signatory  Nations 
which  have  not  taken  part  in  the  proceedings.  If  the  latter 
declare  unanimously  in  favor  of  accepting  the  interpretation 
of  the  point  in  dispute  as  given  in  the  award,  this  interpretation 
shall  be  binding  on  all  and  shall  have  the  same  force  as  the  con- 
vention itself.  In  the  contrary  case,  the  award  shall  have 
force  only  as  between  the  parties  at  variance,  or  as  regards 
the  Powers  which  shall  formally  accept  the  decision  of  the 
arbitrators. 

Article  16g 

The  procedure  to  be  followed  in  recording  adhesions  to  the 
principle  established  by  the  award  in  the  case  contemplated 
in  paragraph  3 of  the  preceding  article,  shall  be  as  follows: 

In  case  of  a convention  estabhshing  a Union  with  a special 
bureau,  the  parties  which  have  taken  part  in  the  suit  shall 
transmit  the  text  of  the  award  to  the  special  bureau  through  the 
medium  of  the  nation  in  whose  territory  the  bureau  is  located. 
The  bureau  shall  word  the  text  of  the  article  of  the  convention 
in  conformity  with  the  award,  and  shall  communicate  it  through 
the  same  channel  to  the  Signatory  Powers  which  have  not  taken 
part  in  the  suit.  If  the  latter  unanimously  accept  the  text  of 
the  article,  the  bureau  shall  draw  up  a record  of  such  acceptance, 
of  which  a certified  copy  shall  be  transmitted  to  all  the  Signa- 
tory Nations. 

If  it  is  not  a question  of  a convention  establishing  a Union 
with  a special  bureau,  the  said  functions  of  the  special  bureau 
shall  be  performed,  in  this  respect,  by  the  International  Bureau 
of  The  Hague  through  the  medium  of  the  Government  of  the 
Netherlands. 

It  is  strictly  understood  that  the  present  provision  in  no  wise 
affects  arbitration  clauses  already  contained  in  existing  treaties. 

Article  16h 

In  each  particular  case  the  Signatory  Powers  shall  conclude 
a special  act  (agreement  to  arbitrate)  in  conformity  with  the 
respective  constitutions  or  laws  of  the  Signatory  Powers,  deter- 


COMPULSORY  ARBITRATION  AT  THE  CONFERENCE  373 


mining  clearly  the  object  of  the  litigation,  the  extent  of  the 
powers  of  the  arbitrators,  the  procedure,  and  the  periods  to 
be  observed  as  far  as  the  constitution  of  the  arbitral  court  is 
concerned. 

Article  16i 

It  is  understood  that  provisions  regarding  arbitration  which 
appear  in  treaties  already  concluded  or  to  be  concluded  shall 
remain  in  force. 

Article  16  k 

The  present  convention  shall  be  ratified  as  soon  as  possible. 

The  ratifications  shall  be  deposited  at  The  Hague. 

The  ratification  of  each  Signatory  Power  shall  specify  the 
cases  enumerated  in  Article  16d  in  which  the  ratifying  Power 
does  not  avail  itself  of  the  provisions  of  Article  16a. 

A record  of  each  ratification  shall  be  drawn  up,  of  which  a 
certified  copy  shall  be  sent  through  diplomatic  channels  to  all 
the  Powers  which  were  represented  at  the  International  Peace 
Conference  at  The  Hague. 

A Signatory  Power  may,  at  any  time,  deposit  new  ratifica- 
tions comprising  additional  cases  included  in  Article  16d. 

Article  161 

Each  of  the  Signatory  Powers  shall  have  the  power  to  de- 
nounce the  convention.  This  denunciation  may  be  made  either 
in  such  a way  as  to  imply  the  total  withdrawal  of  the  denounc- 
ing Power  from  the  convention,  or  so  as  to  take  effect  only  with 
respect  to  a Power  designated  by  the  denouncing  Power. 

This  denunciation  may  likewise  be  made  with  regard  to  one 
or  more  of  the  cases  enumerated  in  Article  16d  or  in  the  protocol 
referred  to  in  Article  16e. 

The  convention  shall  continue  to  exist  so  long  as  it  is  not 
renounced. 

A denunciation,  whether  general  or  with  respect  to  a partic- 
ular Power,  shall  not  take  effect  until  six  months  after  notice 
thereof  has  been  given  in  writing  to  The  Netherlands  Govern- 
ment and  communicated  immediately  by  the  latter  to  all  the 
other  contracting  Powers. 

The  vote  upon  the  adoption  of  the  project  is  interesting 
as  showing  that  32  delegations  expressed  themselves  in 
favor  of  it,  that  only  9 opposed  it,  and  that  3 abstained 
from  voting  in  favor  of  or  against  it.  The  countries  voting 
in  favor  of  the  convention  were  United  States  of  America, 
Argentine  Republic,  Bolivia,  Brazil,  Chile,  China,  Colombia, 


374 


THE  HAGUE  PEACE  CONFERENCES 


Denmark,  Dominican  Republic,  Ecuador,  Spain,  France, 
Great  Britain,  Guatemala,  Haiti,  Mexico,  Nicaragua,  Norway, 
Panama,  Paraguay,  The  Netherlands,  Peru,  Persia,  Portugal, 
Russia,  Salvador,  Servia,  Siam,  Sweden,  Uruguay,  and  Vene- 
zuela. The  nine  against  were:  Germany,  Austria-Hungary, 
Belgium,  Bulgaria,  Greece,  Montenegro,  Roumania,  Switzer- 
land, and  Turkey;  and  the  three  abstentions  were  Italy, 
Japan  and  Luxembourg. 

It  follows,  then,  that  the  Anglo-American  project  for  a 
treaty  of  compulsory  arbitration  was  adopted  in  its  entirety 
by  the  large  majority  of  the  Conference,  namely,  32  votes 
for,  9 against,  and  3 abstentions.  It  may  be  asked  why 
the  convention  elaborated  after  weeks,  indeed  months,  of 
reflection,  and  approved  by  a substantial  majority  of  the  com- 
mission, does  not  appear  among  the  conventions  enumerated 
in  the  Final  Act?  The  answer  is  that  the  minority  opposed  to 
the  convention  insisted  on  the  so-called  unanimity  or  quasi- 
unanimity rule  obtaining  in  diplomatic  conferences,  so  that 
the  unwillingness  of  the  few  prevented  the  wish  of  the  many. 

As  M.  Bourgeois  aptly  said:  “ We  are  here  to  unite,  not 
to  be  counted,”  and,  as  it  was  evident  that  the  project  before 
the  commission  could  not  secure  the  unanimous  approval  of 
the  delegations  present,  M.  de  Martens,  in  a broad-minded 
spirit  of  conciliation,  introduced  a project  which  he  hoped 
might  meet  with  the  approval  of  the  nations  assembled. 

In  introducing  the  resolution,  M.  de  Martens  stated  that  he 
desired  to  place  before  the  committee  a statement  of  the  actual 
situation  regarding  obligatory  arbitration ; that  it  was  regret- 
table that  no  decision  could  be  had  upon  a question  where 
neither  independence,  honor  nor  vital  interests  was  concerned; 
that  he  hoped  to  present  some  common  ground  of  agreement 
by  offering  an  article  to  replace  the  Anglo-American  project, 
which  could  not  be  accepted  unanimously,  the  new  article  to 
state  not  merely  the  failure  of  the  Conference  to  arrive  at  a 
general  agreement,  but  also  the  right  of  the  majority  to  con- 
clude a separate  agreement  if  it  desired. 


COMPULSOEY  AKBITRATION  AT  THE  CONFERENCE  375 


Article  XVII 

Because  of  the  great  difficulty  of  determining  the  extent  and 
conditions  under  which  recourse  to  obligatory  arbitration  might 
be  recognized  by  unanimous  vote  of  the  Powers  and  in  a uni- 
versal treaty,  the  contracting  Powers  limit  themselves  to  stating 
in  the  Additional  Act,  annexed  to  the  present  convention,  the 
cases  worthy  of  being  taken  into  consideration  according  to 
the  free  judgment  of  the  respective  governments.  This  Addi- 
tional Act  shall  only  be  obligatory  upon  the  Powers  which  sign 
or  adhere  to  it. 

M.  de  Martens  felt  that  such  an  article  would  not  only  show 
the  exact  status  of  the  question,  but  at  one  and  the  same  time 
indicate  that  some  Powers  were  agreed  upon  a project  of  oblig- 
atory arbitration.  The  Additional  Act  referred  to  in  the  last 
sentence  of  Article  XVII  was  as  follows; 

Considering  that  Article  16  (38)  of  the  Convention  of  1899 
for  the  pacific  settlement  of  international  disputes  asserts  the 
agreement  of  the  signatory  Powers  to  that  act  that  in  legal 
questions,  and  especially  in  questions  concerning  the  interpreta- 
tion and  application  of  international  conventions,  arbitration 
is  recognized  as  the  most  efficacious  and  at  the  same  time  the 
most  equitable  means  of  regulating  disputes  which  have  not 
been  settled  by  diplomatic  means; 

Considering  that  in  legal  questions  which,  according  to  the 
free  judgment  of  the  contracting  Powers,  do  not  concern  their 
vital  interests,  independence  or  honor,  arbitration  should  be 
considered  obligatory; 

Considering  the  usefulness  of  indicating  henceforth  the 
cases  in  which  the  above  mentioned  reserves  are  not  allowed; 

The  signatory  Powers  of  this  Additional  Act  have  agreed 
on  the  following  provisions: 

Article  1 

In  this  order  of  ideas,  they  agree  to  submit  to  arbitration 
without  reserve  the  following  matters : a,  b,  c,  d,  etc. 

Article  2 

The  signatory  Powers  bind  themselves  to  ratify  this  Addi- 
tional Act  before  January  1,  1909,  and  in  the  instrument  of 
ratification,  to  indicate  precisely  the  cases  of  disputes  for  which 
they  accept  compulsory  arbitration. 

In  adopting  this  project,  M.  de  Martens  believed  that  the 
Conference  would  more  nearly  approach  the  desired  goal,  not 


376 


THE  HAGUE  PEACE  CONFERENCES 


by  modifying  the  position  of  either  party,  but  by  stating  itd 
The  American  delegation  explained  that  the  United  States 
could  not  accept  the  Russian  project  because  it  did  not  contain 
the  first  two  articles  of  the  Anglo-American  proposition.  Our 
delegation  wished  to  see  established  the  principle  of  arbitration 
of  legal  questions  and  only  consented  to  the  enumeration 
of  specific  objects  inasmuch  as  it  seemed  impossible  to  secure 
a general  treaty  of  arbitration  if  specific  cases  were  omitted, 
in  which  the  reserves  of  the  first  two  articles  of  the  American 
proposition  were  to  be  renounced.  The  Russian  proposition 
would  have  obliged  the  nations  to  arbitrate  the  specified  cases, 
but  would  not  have  bound  them  to  arbitrate  generally.  The 
proposition  sacrificed  arbitration  in  general  to  compulsory 
arbitration  of  certain  specified  cases  of  no  vital  importance. 
The  American  delegation,  however,  would  have  supported,  as 
a compromise,  M.  de  Martens’  proposition,  reserving  the  right 
of  the  Senate  to  approve  and  ratify  the  objects  specified  in 
the  list,  but  as  the  minority,  praticularly  Germany  and  Aus- 
tria-Hungary, was  likely  to  oppose  M.  de  Martens’  proposi- 
tion as  strenuously  as  it  opposed  the  Anglo-American  conven- 
tion, it  seemed  inadvisable  to  renounce  a convention  already 
voted,  and  by  an  affirmative  vote  in  favor  of  the  Russian  pro- 
position to  prolong  a discussion  certain  to  result  in  disagree- 
ment. 

Inasmuch  as  M.  de  Martens  had  presented  his  proposition  in 
the  hope  that  it  might  be  unanimously  accepted,  he  withdrew 
it  immediately  upon  the  announcement  of  the  vote  (31  for, 
5 against,  and  8 abstentions).  The  commission  thereupon 
passed  to  the  consideration  of  the  Austro-Hungarian  resolu- 
tion, which,  it  will  be  remembered,  had  received  a majority 
in  the  Committee  of  Examination  and  was  reported  to  the 
commission  for  its  ultimate  adoption  in  case  the  Anglo-Amer- 
ican convention  should  be  rejected.^ 

The  resolution  was  opposed  by  Sir  Edward  Fry,  who  said 

* La  Deuxi^me  Conference  Internationale  de  la  Paix,  1907,  Actes  et  Docu- 
ments Vol.  I,  pp.  545-546. 

^ For  the  text  of  the  Austro-Hungarian  revolution,  see  ante,  pp.  342-343. 


COMPULSOEY  AEBITRATION  AT  THE  CONFERENCE  377 


that  the  Austro-Hungarian  proposition  was  based  upon  the 
hope  that  it  would  satisfy  everybody. 

We  have  recently  voted  by  a very  large  majority  the  Anglo- 
American  declaration.  M.  de  Merey’s  proposition  today  is 
to  deprive  us  of  the  results  of  this  vote,  to  eliminate  the  list  and 
to  remit  to  future  consideration  the  question  of  compulsory 
arbitration.  I believe  if  we  vote  today  the  resolution  of  M.  de 
Merey  we  shall  contradict  ourselves.  The  vote  of  the  Anglo- 
American  proposition  shows  that  there  are  nations  which  believe 
that  they  have  sufficiently  studied  the  question  in  order  to 
conclude  at  the  present  moment  a general  treaty.  Why  remit 
them  to  future  study 

Mr.  Choate  opposed  the  Austro-Hungarian  resolution  with 
great  force  and  reason  in  an  elaborate  argument,  from  which 
the  following  paragraphs  are  taken: 

After  having  discussed  for  three  months  the  subject  vhich 
occupies  our  attention  today,  the  commission  has  expressed 
its  will  by  an  overwhelming  majority  of  31  votes  against  5 to 
8 — a majority  of  4 or  more  to  one — and  has  thereby  declared 
emphatically  in  favor  of  obligatory  arbitration.  It  has  voted 
upon  an  entire  series  of  articles,  separately  and  all  together  and 
the  same  majority  has  stood  steadfastly  by  its  decision.  The 
minority  has  been  so  feeble  that  one  could  almost  count  its 
number  upon  the  fingers  of  a single  hand,  and  now  it  is  proposed 
to  annul  everything  that  we  have  done  in  the  last  three  months, 
and  it  is  said  by  the  distinguished  First  Delegate  of  Austria 
that  there  is  no  alternative,  that  either  we  must  accept  the  rule 
of  absolute  unanimity  or  the  proposition  which  he  has  presented, 
which  is  absolutely  contrary  to  the  clearly  manifested  will  of 
the  commission,  and  is  a fearful  step  backward  from  that  which 
that  will  has  so  strongly  expressed. 

What  conclusion  would  have  to  be  drawn  if  we  should  accept 
the  proposition  of  M.  de  Merey?  Why,  that  a single  member 
of  the  Conference  can  prevent  it  from  doing  anything,  and  can 
nullify  that  which  all  the  rest  have  succeeded  in  doing  up  to 
the  present  time 

As  to  the  merits  of  the  proposition,  can  it  possibly  stand? 
Can  five  votes  nullify  the  will  of  the  thirty-one?  That  is  not 
possible.  Such  a proposition  cannot  be  sustained.  By  this 
decisive  vote  we  have  accepted  the  principle  that  we  would 
submit  to  obligatory  arbitration  cases  of  a juridical  order  and 
especially  those  arising  upon  the  interpretation  of  treaties.  We 

‘ La  Deuxi^me  Conference  Internationale  de  la  Paix,  1907,  Vol.  II, 
Plenary  Session,  First  Commission,  9th  Session,  October  10,  1907. 


378 


THE  HAGUE  PEACE  CONFEEENCES 


have  agreed,  also,  that  the  treaty  should  not  apply  in  cases 
where  national  honor  or  the  vital  interests  of  either  party  were 
involved,  and  that  each  Power  should  have  itself  the  right  to 
deterruine  for  itself  whether  such  was  the  case.  We  have  fur- 
ther, voted  a list  of  cases  in  which  arbitration  should  be  obliga- 
tory, waiving  the  honor  clause,  and  finally  we  have  agreed  to 
the  protocol  proposed  by  the  Delegation  of  Great  Britain,  which 
would  enable  subsequent  subjects  to  be  added  to  the  list.  There 
only  remain  some  details  for  us  to  determine. 

Now,  behold,  M.  de  Merey  comes  forward  with  his  propo- 
sition which  is  directly  contrary  to  all  this,  which  nullifies  it  all, 
which  undoes  all  that  we  have  been  doing  since  we  first  took 
up  the  project  for  consideration;  and  we  are  told  that  we  must 
accept  his  proposition  or  nothing.  He  would  have  us  remit 
to  the  Powers  for  further  study  a proposition  on  which  we  are 
all  agreed.  Surely,  we  have  not  come  here  for  any  such  trivial 
purpose.  We  have  come  at  the  behest  of  our  governments  and 
the  general  call  of  the  nations,  to  establish  obligatory  arbitra- 
tion. It  has  not  been  our  purpose  to  labor  during  three  months 
to  accomplish  that  end,  and  to  annul  it  all  at  last  at  the  sugges- 
tion of  five  dissenting  Powers  and  destroy  at  one  blow  the  result 
of  all  our  work.  And  will  the  Governments  succeed  any  better 
than  we?  Will  they  succeed  as  well  as  we?  Have  we  not 
reached  that  approximate  unanimity  which  justifies  the  carriage 
of  this  proposition  one  step  further,  andsubmitting  it  to  the  final 
decision  of  the  Conference?  .... 

Let  us  then,  gentlemen,  put  to  the  vote  of  this  Conference 
the  proposition  of  the  honorable  delegate  of  Austria-Hungary, 
and  let  us  see  here  whether  those  who  thus  far  have  constituted 
this  great  majority,  on  the  one  hand,  wish  to  support  their  own 
action,  or,  on  the  other  to  accept  the  remarkable  proposition 
of  M.  de  Merey  which  utterly  nullifies  it.  Let  us  occupy  our- 
selves with  that  which  is  our  own  business  and  leave  to  the  Con- 
ference the  duty  to  give  an  answer  to  the  question  which  has  here 
been  raised. 

It  has  been  said  by  the  eminent  President  of  the  Conference 
that  my  proposition  would  impose  the  will  of  the  majority  upon 
the  minority.  That,  gentlemen,  is  a clear  misapprehension. 
I made  no  such  claim.  The  claim  is  that  when  the  vast  ma- 
jority of  the  Conference  desire  to  establish  the  agreement  for 
obligatory  arbi+ration  for  those  who  will  to  enter  in,  and  those 
who  will  not  to  stay  out,  they  have  the  right  to  do  so,  and  to  do 
it  under  what  M.  Martens  has  so  well  described  as  "le  drapeau  de 
la  Conference.”  Butthe  contrary  proposition,  which  M.  deMerey 
and  others  have  advocated,  subjects  not  a great  majority  only, 
but  the  entire  Conference  but  one,  to  the  dominating  and  de- 
structive will  of  that  single  one.  Certainly  there  is  neither 
justice,  nor  reason,  nor  common-sense  in  a proposition  that 


COMPULSORY  ARBITRATION  AT  THE  CONFERENCE  379 


will  bring  about  such  an  iniquitous  result,  and  render  any 
decisive  action  on  any  important  question  absolutely  impos- 
sibled 

After  much  discussion,  M.  de  Merey’s  resolution  was  put  to 
vote  and  rejected  by  24  against,  to  14  for,  and  6 abstentions. 

7.  Declaration  in  Favor  of  Compulsory  Arbitration 

At  the  announcement  of  this  vote.  Count  Tornielli  took 
occasion  to  exercise  the  right  he  had  reserved  to  present  a 
resolution  to  the  consideration  of  the  commission  in  the  event 
that  the  Anglo-American  proposition  should  not  receive  the 
unanimous  or  quasi-unanimous  approval.  He  spoke  as  fol- 
lows: 

In  the  first  part  of  September  I had  the  honor  to  ask  in 
Committee  A that  a proposition  presented  by  the  Italian  dele- 
gation upon  the  subject  of  obligatory  arbitration  should  be 
postponed  until  the  time  when  the  commission  should  have 
passed  upon  all  the  other  propositions  which  might  be  presented. 

The  result  of  the  last  ballots  convinces  me  that  it  would 
be  an  indiscretion  to  continue  further  the  search  for  formulae 
which  could  have  no  chance  of  reuniting  the  votes.  Under 
these  conditions  I abandon  the  proposition  which  I had  the 
honor  to  announce. 

I am  convinced  that  after  the  intense  work  of  judicial  analy- 
sis and  profound  criticism  of  the  texts  which  has  permitted  us 
to  improve  and  complete  very  seriously  and  to  a large  extent 
the  work  of  the  peaceful  settlement  of  international  disputes, 
our  spirits  are  no  longer  prepared  to  renounce  the  objections 
which  every  new  formula  must  meet. 

It  is  not  the  time  for  great  speeches. 

There  are,  however,  certain  necessary  statements. 

I shall  sum  them  up  in  three  points. 

The  first — the  most  important — is  that  the  Conference  of 
1907  has  been  unanimous  in  recognizing  the  principle  of  oblig- 
atory arbitration. 

The  second  consists  in  affirming  without  contradiction,  that 
in  the  great  field  of  international  relations  forming  the  subject 
of  the’law  of  conventions  between  States,  there  are  some  without 
doubt  which  may  be  the  subject  of  obligatory  arbitration. 

* La  Deuxi^me  Conference  Internationale  de  la  Paix,  Vol.  II,  Plenary 
Session,  First  Commission,  9th  Session,  October  10,  1907. 


380 


THE  HAGUE  PEACE  CONFERENCES 


The  third  statement  for  which  I invoke  your  unanimous 
consent,  is  this : All  the  States  in  the  world  have  worked  here 
together  for  four  months  upon  difficult,  sometimes  delicate, 
questions,  learning  not  only  to  know  one  another  better,  but 
also  to  respect  and  love  one  another  more. 

The  general  spirit  which  has  come  from  the  contact  of  all 
these  forces  worffing  together  is  a very  high  one.  It  is  a com- 
manding spectacle  and  an  undeniable  result.  The  differences 
of  opinion  between  us  have  never  passed  the  limit  of  judicial 
controversies  and  questions  of  detail. 

Let  us  wisely  stop  there.  We  have  run  a good  course. 
Let  us  be  content  with  the  work  accomplished.  Give  it  time 
to  bring  forth  fruit. 

If  looking  behind  us,  one  of  us  feels  some  regret  at  seeing 
certain  incomplete  works,  on  turning  our  eyes  to  the  future, 
we  are  all  filled  with  confidence,  no  thought  of  discouragement 
invades  our  souls. ^ ' 

Baron  Marschall  and  M.  de  Merey  declared  that  their  delega- 
tions would  support  the  resolution,  and  the  president  of  the 
commission,  Mr.  Bourgeois,  likewise  associated  himself  “ with 
the  noble  words  pronounced  by  Count  Tornielli,”  stating  that 
they  gave  him  occasion  to  reaffirm  the  points  upon  which  a 
unanimous  accord  has  been  reached : first,  the  principle  of  oblig- 
atory arbitration,  which  failed  in  1899,  has  received  the  unani- 
mous approval  in  1907 ; second,  it  is  admitted  by  all  that 
certain  matters,  notably  those  which  relate  to  the  interpreta- 
tion of  treaties,  are  susceptible  to  obligatory  arbitration  without 
any  restriction;  third,  those  who  seem  to  differ  upon  the  time 
when  the  engagement  should  be  entered  into  regarding  such 
matters  are  only  separated  by  a question  of  delay  and  not  by  a 
question  of  principle.  These  three  points,  he  said,  ‘T  have  en- 
deavored to  call  to  the  attention  of  the  commission  and  in  the 
name  of  the  commission,  I thank  Count  Tornielli  for  having 
confirmed  them.”=  M.  Bourgeois,  thereupon  suggested  the 
appointment  of  representatives  of  the  various  views  in  order 
to  find  a formula  which  would  adequately  express  the  unani- 

‘ La  Deuxi^me  Conference  de  la  Paix,  Actes  et  Documents,  1907,  Vol.  I, 
pp. 549-550. 

2 La  Deuxieme  Conference  Internationale  de  la  Paix,  1907,  Plenary  Ses- 
sion, Vol.  II,  First  Commission,  9th  Session,  October  10,  1907. 


COMPULSORY  ARBITRATION  AT  THE  CONFERENCE  381 

mous  agreement.  M.  de  Nelidow  proposed  the  formation  of  a 
similar  committee  whose  members  should  be  chosen  from 
among  the  representatives  of  the  two  opinions  dividing  the 
Conference,  which  committee  would  find  an  acceptable  for- 
mula. 

The  resolution  was  reported  in  the  tenth  plenary  session  of 
the  first  commission,  held  October  11,  1907.  The  text  is  as 
follows; 

The  Commission,  conforming  to  the  spirit  of  mutual  under- 
standing and  concession  which  is  the  very  spirit  of  the  Peace 
Conference,  has  resolved  to  present  to  the  Conference  the  follow- 
ing declaration  which,  while  reserving  to  each  of  the  States 
represented  the  benefit  of  these  votes,  permits  them  all  to  aflfirm 
the  principles  which  they  consider  unanimously  recognized : 

The  commission  is  unanimous, 

1.  In  recognizing  the  principle  of  obligatory  arbitration; 

2.  In  declaring  that  certain  differences,  and  notably  those 
relating  to  the  interpretation  and  application  of  provisions  of 
international  conventions,  are  susceptible  of  being  submitted 
to  obligatory  arbitration  without  any  restriction. 

It  is  unanimous  finally  in  proclaiming  that  although  it  has 
not  yet  been  found  feasible  to  conclude  a convention  in  this 
sense,  nevertheless  the  divergences  of  opinion  which  have  come 
to  light  have  not  exceeded  the  bounds  of  judicial  controversy, 
and  that,  by  working  together  here  during  the  past  four  months 
all  the  countries  of  the  world  have  learned  not  only  to  under- 
stand each  other  and  to  come  together  more  closely,  but  have 
been  able  to  put  forth  in  the  course  of  this  long  collaboration 
a very  high  sentiment  for  the  common  good  of  humanity.* 

After  various  expressions  in  favor  of  the  resolution,  Mr. 
Choate  declared  the  sober  and  measured  view  of  the  delega- 
tion of  the  United  States ; 

Before  the  vote  is  taken  upon  the  proposition  which  is  now 
before  the  commission,  I desire,  on  the  part  of  the  Delegation 
of  the  United  States  of  America,  to  make  a brief  statement. 

The  principles  which  have  guided  our  action  in  the  past 
in  the  Conference  and  will  control  it  in  the  vote  upon  the  present 
proposition,  are  as  follows: 


* La  Deuxifeme  Conference  Internationale  de  la  Paix,  Actes  et  Documents, 
1907,  Vol.  I,  p.  551. 


382 


THE  HAGUE  PEACE  CONFERENCES 


The  immediate  results  of  the  present  Conference  must  be 
limited  to  a small  part  of  the  field  which  the  more  sanguine  have 
hoped  to  see  covered,  but  each  successive  Conference  will  make 
the  positions  reached  in  the  preceding  Conference  its  point  of 
departure,  and  will  bring  to  the  consideration  of  further  ad- 
vances towards  international  agreement  opinions  affected  by  the 
acceptance  and  application  of  the  previous  agreements.  Each 
Conference  will  inevitably  make  further  progress  and  by  suc- 
cessive steps  results  may  be  accomplished  which  have  formerly 
appeared  impossible. 

We  have  kept  always  in  mind  the  promotion  of  this  con- 
tinuous process  through  which  the  progressive  development 
of  international  justice  and  peace  may  be  carried  on,  and  we 
are  inclined  to  regard  the  work  of  this  Second  Conference  not 
merely  with  reference  to  the  definite  results  to  be  reached  here, 
but  also  with  reference  to  the  foundations  to  be  laid  for  further 
results  in  future  Conferences.  It  may  well  be  that  among  the 
most  valuable  services  rendered  to  civilization  by  this  Second 
Conference  will  be  found  the  progress  made  in  matters  upon 
which  the  Delegates  may  reach  no  definite  agreement. 

We  have  carried  the  process  of  discussion  upon  the  projet 
which  we  introduced  and  have  advocated,  and  on  which  the 
commission  has  voted,  as  far  as  our  instructions  permit,  which 
are  to  the  effect  that  after  reasonable  discussion,  if  no  agree- 
ment is  reached,  it  is  better  to  lay  the  subject  aside  or  refer  it 
to  some  future  Conference  in  the  hope  that  intermediate  con- 
siderations may  dispose  of  the  objections. 

After  three  months  of  earnest  consideration  and  discussion 
the  commission  reached,  before  the  introduction  of  the  present 
proposition,  by  a majority  of  4 to  1 of  the  entire  member- 
ship of  the  Conference,  the  adoption  of  our  projet  for  carrying 
the  principle  of  obligatory  arbitration  into  concrete  and  prac- 
tical effect,  by  an  agreement  proposed  to  be  entered  into  be- 
tween nations  who  supported  the  projet,  leaving  it  open  for  the 
rest  to  dissent  or  to  adhere  as  they  might  afterwards  be  advised. 

It  would  seem  to  have  been  the  legitimate  sequence  of  that 
action  that  the  projet  should  be  carried  before  the  Conference 
and  find  its  place  in  its  final  act.  We  therefore  regard  the  pres- 
ent resolution  as  a very  decided  and  serious  retreat  from  the 
advanced  position  in  favor  of  obligatory  arbitration  which  the 
commission  has  already  reached,  and  one  which  in  our  judgment 
cannot  but  seriously  retard  and  imperil  the  progress  of  the 
cause  of  arbitration  in  general.  We  therefore  cannot  conscien- 
tiously, without  an  abandonment  on  our  part  of  the  principles 
for  whose  practical  application  we  have  so  long  contended, 
vote  for  the  resolution  now  under  consideration.  Not  because 
we  do  not  favor  the  principle  of  obligatory  arbitration,  for  it 
is  that  for  which  we  have  been  from  the  beginning  contending, 


COMPULSORY  ARBITRATION  AT  THE  CONFERENCE  383 


but  because  it  is  practically  an  abandonment  by  the  commission 
of  the  advanced  position  which,  by  such  a decisive  vote,  it  had 
already  reached,  and  I am  therefore  instructed  by  the  Delega- 
tion to  abstain  on  the  present  voted 

The  opposite  view  was  expressed  by  Sir  Edward  Fry,  who 
as  joint  author  of  the  Anglo-American  project,  spoke  with  pecu- 
liar authority.  He  said: 

I regret  from  the  bottom  of  my  heart  that  the  project  will 
not  be  presented  to  the  Conference.  I regret,  equally,  that 
the  United  States  feels  that  it  is  not  able  to  vote  in  favor  of  the 
declaration  presented  to  us.  I regard  this  declaration  as  a 
solemn  acknowledgment  of  the  progress  already  accomplished 
by  the  First  Commission  and  not  as  an  abandonment  of  its 
results.^ 

M.  de  Nelidow  stated : 

If  I speak  it  is  not  to  continue  the  discussion,  but  in  this 
very  moment  the  success  of  the  Conference  is  at  stake.  t is 
unfortunately  evident  that  it  has  not  been  able  and  was  never 
able  to  establish  by  a unanimous  vote  the  desire  of  the  great 
majority,  but  we  must  finish  and  we  can  only  finish  by  recip- 
rocal concessions.  I therefore  appeal  to  your  good-will  in  order 
that  it  may  not  be  said  that  we  were  incapable  of  reaching 
unanimity  upon  this  important  subject  of  our  deliberations.® 

The  declaration  was  thereupon  put  to  vote  and  was  unani- 
mously accepted  with  four  abstentions : United  States,  Haiti, 
Japan,  and  Turkey  The  result  was  received  with  great  and 
continued  applause,  for  it  seemed  to  the  majority  of  the  Con- 
ference that  something  had  indeed  been  accomplished,  even 
although  the  Anglo-American  convention  was  buried  from  the 
sig*ht  of  man. 

The  Austro-Hungarian  resolution  gave  rise  to  a keen  and, 
one  might  say,  acrimonious  discussion  as  to  whether  the  propo- 
sition voted  by  a large  and  overwhelming  majority  of  the 
Conference  should  be  included  in  the  Final  Act  as  the  act  of  the 

* La  DeuxiSme  Conference  Internationale  de  la  Paix,  1907,  Vol.  II,  Plenary 
Session,  First  Commission,  10th  Session,  October  10,  1907. 

’ Ibid.,  10th  Session,  October  10,  1907 

* Ibid.,  10th  Session,  October  11,  1907. 

' Ibid.,  10th  Session,  October  10,  1907. 


384 


THE  HAGUE  PEACE  CONFERENCES 


Conference,  or  whether  the  opposition  of  the  few  recalcitrant 
delegates  could  prevent  the  inclusion  of  a project  in  the  Final 
Act.  The  opponents  of  arbitration  insisted  that  the  majority 
was  not  free  in  the  Conference  to  force  the  will  of  the  majority 
upon  the  minority,  that  it  was  a diplomatic  conference  not  a 
parliament.  Mr.  Choate  insisted  that  the  majority  did  not 
seek  to  force  anything  upon  the  minority,  but  that  the  major- 
ity wished  to  conclude  a convention  to  bind  those  who  voted 
for  it,  and  to  leave  the  question  of  ultimate  adherence  to  this 
convention  open  to  those  who  opposed  it  at  present.  Mr. 
Choate  further  insisted  that  the  minority  should  not  impose 
its  wish  upon  the  majority,  and  the  simple  question  was 
whether  a desire  of  one  may  prevent  the  expressed  wish  of  all. 
Mr.  Choate  then  recalled  the  precedents  of  1899  in  which  the 
declaration  forbidding  the  use  of  dum-dum  bullets  was  included 
in  the  Final  Act,  although  Great  Britain  and  the  United  States 
voted  against  it,  and  he  referred  to  the  action  of  the  present 
Conference  in  adopting  the  prize  court  convention  against 
the  negative  vote  of  Brazil.  It  should  be  said,  however, 
that  none  of  these  Powers  objected  to  the  negotiation  and  inser- 
tion of  the  various  projects  in  the  Final  Act,  whereas  the 
present  minority  did.  M.  de  Martens  and  Baron  Marschall 
declared  that  the  principle  of  unanimity  is  essential  to 
international  conferences.  For  example,  Baron  Marschall 
declared  that  his  delegation,  in  conformity  with  the  admitted 
usage  in  international  conferences,  could  not  accept  the  prin- 
ciple announced  by  the  first  delegate  of  the  United  States  of 
America,  that  the  majority  decides  and  the  minority  ought  to 
yield;  concluding  with  the  statement  “that  this  principle 
would  endanger  all  international  conferences.” 

The  Conference  took  no  action  upon  this  grave  and  delicate 
question,  but  it  is  believed  that  the  large,  even  the  overwhelm- 
ing majority  was  in  favor  of  the  requirement  of  unanimity  in 
important  matters. 

Deliberations  extending  over  a period  of  three  months 
resulted  in  the  defeat  of  a definite,  carefully-considered  proj- 
ect for  a general  treaty  of  arbitration.  It  can  not  be  said. 


COMPULSOEY  AKBITKATION  AT  THE  CONFERENCE  385 


however,  that  the  time  was  wasted.  The  deliberations  of  the 
First  Commission,  of  the  Committee  of  Examination,  and  of 
the  Commission  in  Plenary  Session,  will  be  of  great  value 
to  any  subsequent  Conference,  or  indeed  in  any  subsequent 
consideration  of  the  subject,  and,  although  the  convention 
failed  of  adoption,  the  principle  of  obligatory  arbitration 
was  unanimously  admitted.  It  is,  therefore,  improbable  that 
any  nation  or  collection  of  nations  will  hereafter  hold  a brief 
against  compulsory  arbitration. 


CHAPTER  VIII 


THE  CONVENTION  RESPECTING  THE  LIMITATION 
OF  THE  EMPLOYMENT  OF  FORCE  IN  THE 
RECOVERY  OF  CONTRACT  DEBTS* 

The  failure  to  negotiate  a general  treaty  of  arbitration  in 
which  nations  pledged  themselves  in  advance  to  arbitrate, 
subject  to  the  reserves  of  independence,  vital  interests  and 
honor,  legal  questions  and  controversies  arising  out  of  the 
interpretation  of  treaties  and  conventions  seemed  to  many 
within  and  most  without  the  Conference  a setback  to  the  cause 
of  arbitration.  The  refusal  of  a handful  of  States  to  pledge 
themselves  to  arbitrate  without  reserve  certain  specified 
cases  in  which  independence,  vital  interests  and  honor  could 
not  be  involved,  seemed  not  merely  a setback  but  an  indica- 
tion that  compulsory  arbitration  of  unimportant,  not  to  say 
insignificant,  questions  is  impossible  or  inexpedient  in  the 
present  status  of  international  development.  The  declara- 
tion in  favor  of  obligatory  arbitration,  the  statement  that 
legal  questions  and  controversies  arising  out  of  the  interpreta- 
tion of  treaties  and  conventions  might  be  arbitrated  without 
reserve,  was  looked  upon  as  the  acceptance  of  a principle 

1 The  reader  is  referred  to  the  following  articles  on  the  subject  of  the 
forcible  collection  of  contract  debts:  George  Winfield  Scott’s  Inter- 
national Law  and  the  Drago  Doctrine,  North  American  Review,  October 
(1906),  pp.  602-610;  George  Winfield  Scott’s  Hague  Convention  Restrict- 
ing the  Use  of  Force  to  Recover  Contract  Claims,  American  Journal  of 
International  Law  (1908),  Vol.  II,  pp.  78-94;  Amos  S.  Hershey’s  Calvo 
and  Drago  Doctrines,  ibid.,  Vol.  I,  pp.  26-45;  Crammond  Kennedy’s  Is 
the  Forcible  Collection  of  Contract  Debts  in  the  Interest  of  International 
Justice  and  Peace,  Proceedings  of  the  American  Society  of  International 
Law  (1907),  pp.  100-124;  Luis  M.  Drago’s  State  Loans  in  their  Relation 
to  International  Policy,  American  Journal  of  International  Law  (1907), 
Vol.  I,  pp.  692-726. 

See  also  Moulin’s  La  Doctrine  de  Drago  (1908). 

386 


LIMITATION  OF  THE  EMPLOYMENT  OF  FORCE  387 


with  a distinct  understanding  that  it  be  not  put  into  practice. 
Yet  the  powers  represented  at  the  Conference  bound  them- 
selves to  arbitrate  controversies  arising  out  of  contract  debts, 
and  specifically  renounced  the  use  of  force,  provided  the  debtor 
State  agree  to  arbitrate  the  question  in  controversy,  should 
actually  arbitrate  it  and  give  effect  to  the  award  of  the  Court 
of  Arbitration.  It  is  impossible  to  overestimate  the  impor- 
tance of  this  convention,  because  in  its  very  introductory 
phrase  the  powers  recognize  that  arbitration  is  a substitute 
for  force;  that,  if  arbitration  be  had,  force  is  unnecessary  and 
therefore  is  specifically  renounced  by  the  convention.  This 
declaration,  therefore,  shows  that  arbitration  is,  as  its  parti- 
sans have  always  maintained,  an  instrument  of  peace,  and  in 
adopting  and  proclaiming  the  principle  the  Conference,  how- 
ever unconsciously,  took  a concrete  step  toward  disarmament. 

In  the  next  place,  the  convention  not  merely  recognizes 
arbitration  as  the  most  eflicacious  and  equitable  means  of 
adjusting  a controversy  which  diplomacy  has  failed  to  settle, 
but  the  powers  agree  in  advance  to  resort  to  arbitration  in 
the  first  instance  instead  of  force,  thereby  accepting  in  con- 
ventional form  the  duty  to  arbitrate  controversies  of  the 
specified  nature.  An  examination  of  the  document  shows  that 
the  renunciation  of  force  is  conditioned  solely  upon  arbitra- 
tion, and  that  the  reserves  of  independence,  vital  interests  and 
honor  usually  accompanying  agreements  to  arbitrate  are 
wholly  lacking.  In  other  words,  the  parties  to  the  conven- 
tion accept  the  principle  of  arbitration  without  reserves  of 
any  kind  and  pledge  themselves,  not  merely  to  arbitrate  all 
controversies  arising  out  of  contract  indebtedness,  but,  in 
consideration  of  such  arbitration,  to  renounce  the  use  of  force 
for  the  collection  of  contract  debts.  It  is  seen,  therefore,  that 
the  Conference  did  something  more  than  accept  the  princi- 
ple of  obligatory  arbitration,  and  while  it  declared  legal  ques- 
tions and  controversies  arising  out  of  treaties  and  conventions 
susceptible  of  arbitration  without  reserve,  it  pledged  the 
powers  accepting  and  applying  international  law  in  their 
foreign  relations,  not  merely  to  the  principle  but  to  the  practice 
of  compulsory  arbitration.  It  cannot  be  said  therefore  that 


388 


THE  HAGUE  PEACE  CONFERENCES 


compulsory  arbitration  failed  at  The  Hague,  for  it  achieved  a 
distinct  and  one  may  say  an  unexpected  victory. 

The  importance  of  the  subject  therefore  justifies  an  exami- 
nation of  the  successive  steps  by  which  the  renunciation  of 
the  use  of  force  for  the  collection  of  contract  debts  was  reached. 

1.  The  Adjustment  of  International  Claims  and  the 
Means  Employed 

It  is  unfortunately  true  that  international  law  sanctions 
force  and  regards  a war,  irrespective  of  the  justice  or  injustice 
of  its  origin,  as  legal  in  the  sense  that  the  outbreak  of  war 
creates  legal  duties  and  obligations  for  neutral  as  well  as  belli- 
gerent. Therefore,  as  war  may  exist  whether  its  cause  be  just 
or  unjust,  it  follows  that  war  may  exist  for  any  cause  which 
any  State  chooses  to  regard  as  of  sufficient  importance.  War 
may  therefore  be  declared  in  order  that  controversies  arising 
out  of  contract  debts  be  settled  by  force.  But  whether  we 
admit  the  propriety  of  war  or  condemn  it  altogether,  partisan 
and  opponent  agree  that  war  should  be  the  ultimate  means 
used  to  settle  a controversy,  and  that  it  is  a little  less  than 
criminal  to  resort  to  arms  without  exhausting  all  other  means 
of  adjustment. 

Now,  these  means  are  of  various  kinds.  In  the  first  place 
nations  ordinarily  adjust  their  minor  difficulties  through  diplo- 
matic channels.  If  direct  negotiation  fails  to  settle  the  con- 
troversy good  offices  may  be  offered  and  mediation  proposed 
in  accordance  with  the  express  terms  of  the  convention  for  the 
peaceful  settlement  of  international  disputes.*  But  it  is  proper 
to  add  that  diplomacy  itself  should  not  be  resorted  to  on 
behalf  of  private  claimants  unless  the  means  at  their  disposal 
have  been  exhausted.  In  other  words,  if  a citizen  of  the 
United  States  settles  in  the  Argentine  Republic,  while  he 
does  not  cease  to  be  a citizen  of  the  United  States,  he  never- 
theless subjects  himself  to  Argentine  law  and  justice  in  all 
transactions  arising  out  of  his  residence  in  that  country.  The 

' Articles  1-8  of  the  Convention  for  the  Pacific  Settlement  of  Interna- 
tional Disputes. 


LIMITATION  OF  THE  EMPLOYMENT  OF  FOECE 


389 


most  he  should  ask,  and  all  he  is  entitled  to  receive,  is  that 
he  be  treated  upon  an  equality  with  the  citizens  of  the  Argen- 
tine Republic,  and  that  he  be  not  unjustly  discriminated  against 
in  favor  of  citizens  of  Argentine  or  foreigners  of  other  nation- 
alities. If  he  purchase  bonds  of  the  Argentine  Government, 
and  if  default  be  made  either  in  payment  of  principal  or  inter- 
est he  should  seek  his  remedy  in  the  Argentine  courts,  provided 
an  Argentine  citizen  so  circumstanced  is  permitted  to  sue  his 
government.  If  he  has  entered  into  an  ordinary  contract  with 
the  Argentine  government  to  construct,  we  will  suppose,  a 
railroad,  and  the  contract  is  broken  by  Argentine  authori- 
ties, he  should  seek  his  remedy  for  the  breach  of  the  contract 
in  the  courts  of  justice,  provided  a citizen  of  Argentina  so  cir- 
cumstanced possesses  such  a remedy.  Especially  would  he 
be  bound  to  resort  to  the  law  courts  if,  as  generally  happens, 
he  had  expressly  agreed  in  the  contract  of  concession  to 
resort  to  the  local  courts  for  the  settlement  of  a controversy 
arising  out  of  the  contract,  and  had  specifically  renounced 
the  right  to  secure  the  settlement  of  the  controversy  through 
diplomatic  channels.  But  it  would  be  futile  to  insist  that 
an  American  citizen  residing  in  foreign  parts  resort  to  the 
courts,  if  the  foreign  government  in  question  does  not  permit 
a foreigner  to  sue  it  in  the  courts. 

In  the  next  place,  it  would  be  unjust  to  compel  our  citizen 
to  abide  by  the  decision  of  a foreign  court  concerning  his  rights 
if  the  decision,  judicial  in  form,  was  in  reality  a denial  of  jus- 
tice. The  burden  of  proof,  however,  should  be  upon  him 
to  establish  the  denial,  for  a suitor  is  more  prone  to  suggest 
fraud  and  corruption  when  the  decision  of  a court  is  against 
him  than  when  it  is  in  his  favor.  Again,  a distinction  should 
be  made  between  a denial  and  a miscarriage  of  justice,  for  a 
State  cannot  well  guarantee  that  the  law  will  be  correctly 
applied  in  every  case  tried  in  its  courts,  whereas  it  must  be 
presumed  to  guarantee  that  there  will  be  no  denial,  that  is, 
refusal  of  justice.  Therefore,  if  a citizen  of  the  United  States 
has  entered  into  contractual  relations  with  a foreign  govern- 
ment by  the  purchase  of  bonds  or  concessions,  or  in  any  other 


390 


THE  HAGUE  PEACE  CONFERENCES 


way  has  become  a creditor  of  such  foreign  government,  he 
should  not  claim  a greater  right  than  the  native  citizen,  because 
he  contracts  according  to  the  laws  of  the  country  and  he  should 
seek  the  remedy  open  to  the  native.  Until  he  has  sought  this 
remedy  and  there  has  been  a denial  of  justice  or  a miscarriage 
of  justice  so  gross  as  to  amount  to  a denial,  or  unless  he  estab- 
lishes beyond  reasonable  doubt  that  the  remedy  offered  is 
wholly  inadequate,  he  should  not  be  permitted  to  resort  to 
diplomatic  means  in  order  to  effect  a settlement  of  his  debt. 
If  he  does  request  diplomatic  support,  the  Department  of 
State  should  refuse  to  grant  it;  for  the  policy  of  the  United 
States  has  been  and  is  not  to  press  contract  claims,  but  to 
remit  the  claimant  to  his  judicial  remedy  in  the  debtor  coun- 
try. It,  therefore,  appears  that  the  resort  to  diplomacy  should 
not  be  sanctioned  until  the  claimant  has  exhausted  his  remedy 
in  the  foreign  country  and  only  when  the  circumstances  of  the 
particular  case  justify  diplomatic  intervention.  The  impro- 
priety of  a contrary  line  of  action  seems  to  be  too  clear  for 
argument.  ‘ 

But  suppose  that  the  claimant  has  interested  his  govern- 
ment in  his  behalf  and  has  led  it  to  espouse  his  claim.  It  is 
necessary  before  presenting  his  case  to  the  foreign  govern- 
ment to  investigate  it  in  order  to  ascertain  its  nature  and 
amount.  Proof  is  demanded  and  furnished  to  support  the 
claimant’s  contention,  and,  supposing  that  he  acts  in  perfect 
good  faith,  his  government  ordinarily  makes  an  imperfect 
and  therefore  partial  investigation  based  largely  if  not  solely 
upon  testimony  furnished  by  one  of  the  interested  parties. 
Supposing  that  the  claimant  be  thoroughly  honest,  he  may 
nevertheless  be  mistaken  and  his  mistake  may  involve  his 
country  in  a serious  international  difficulty.  Even  if  person- 
ally honest,  the  claimant  may  have  been  imposed  upon  by  his 
agents  or  business  associates,  and  the  documents  submitted 
to  his  government  may  be  forged  in  whole  or  in  part,  or  may 
bristle  with  exaggeration  and  unfounded  statement.  Yet 

* For  the  subject  of  claims  against  foreign  governments  and  the  practice 
and  procedure  in  such  cases,  see  Moore’s  Int.  Law  Digest,  Vol.  VI,  Ch.  XXI. 


LIMITATION  OF  THE  EMPLOYMENT  OF  FORCE 


391 


to  reach  a decision,  the  government  must  rely  upon  these  docu- 
ments: otherwise  there  is  no  legal  foundation  laid  for  diplo- 
matic good  offices  or  intervention.  If  the  case  be  presented  to 
the  foreign  government,  that  government  necessarily  possesses 
the  right  to  reply,  but  its  reply  is  prejudiced  in  advance  by 
the  fact  that  the  presentation  of  the  claim  questions  the  jus- 
tice of  the  defendant  government’s  action.  If,  however,  the 
reply  of  the  foreign  government  be  received  and  examined, 
weighed  and  rejected,  it  follows  that  our  government  decides 
the  controversy  as  a judge  and  condemns  without  a judicial 
hearing  the  foreign  State.  Even  if  the  examination  were  care- 
ful and  the  conclusion  reached  sound,  it  would  still  be  better 
to  refer  the  matter  to  arbitration  than  to  decide  it  in  this 
manner,  for  it  is  a familiar  and  elementary  doctrine  that  one 
should  not  be  judge  in  his  own  case.  Experience  shows, 
however,  that  the  examination  made  in  foreign  offices  is  often 
not  the  result  of  a careful,  painstaking  examination  and  that 
the  conclusion  reached  is  not  always  the  decision  of  a just, 
upright,  unprejudiced  judge.  This  appears  conclusively  from 
the  fact  that  claims  presented  to  arbitration  have  been  invari- 
ably reduced  in  amount;  that  the  highest  awards  rarely  if  ever 
exceed  80  per  cent  of  the  amount  demanded;  and  that  awards 
have  been  made  for  less  than  one  per  cent  of  the  claim 
espoused  by  a government,  pressed  through  diplomatic  chan- 
nels and  eventually  submitted  to  arbitration.  If,  then,  we 
admit  that  a refusal  of  the  debtor  State  to  adjust  the  claim 
justifies  the  use  of  force  in  order  to  compel  its  payment  or 
settlement,  the  results  of  arbitration  show  that  nations  may 
be  forced  into  warlike  measures  by  unscrupulous  or  mistaken 
creditors.  Intervention  in  such  cases  is  not  justified;  it  is 
therefore  unjust,  and,  in  addition  to  being  unjust,  it  involves 
the  outlay  of  a larger  sum  for  armed  force  than  that  likely  to 
be  recovered  by  its  use. 

In  the  next  place,  the  use  of  force  for  the  collection  of 
pecuniary  claims  is  unjust,  because,  if  successful,  it  prejudices 
the  claims  of  third  parties  who  have  not  resorted  to  force  to 
collect  or  to  secure  the  recognition  and  eventual  settlement  of 


392 


THE  HAGUE  PEACE  CONFERENCES 


their  unpresented  or  unsettled  claims.  A reference  to  the 
decision  of  The  Hague  tribunal  in  the  matter  of  the  Venezuelan 
claims  indicates  clearly  that  the  use  of  force  gave  preferential 
treatment  to  the  claims  of  Germany,  Great  Britain  and  Italy, 
to  the  disadvantage  of  the  neutral  claimants  who  awaited  in 
peace  the  judicial  settlement  of  their  international  difficulties. ‘ 

Then  again,  the  use  of  force,  even  supposing  that  it  be  not 
wholly  without  foundation,  is  a hardship  to  the  debtor  nation, 
because  if  it  meets  or  seeks  to  meet  force  by  force,  vast 
sums  of  money  are  diverted  from  the  payment  of  its  just 
obligations,  and  the  State  may  thus  be  deprived  of  its  ability 
to  meet  its  obligation.  We  no  longer  imprison  a debtor 
because  he  is  unable  to  meet  his  obligation,  for  by  so  doing 
we  not  only  deprive  him  of  his  liberty  but  of  the  means  of 
livelihood  and  the  power  of  extinguishing  his  debt.  Why 
should  coercion  be  applied  to  a debtor  State,  its  ports  blockaded, 
its  custom  houses  seized,  its  territory  perhaps  occupied,  when 
by  so  doing  the  debtor  is  deprived,  as  was  the  prisoner,  of  the 
power  to  meet  its  obligation,  and  the  rights  of  other  but 
peaceful  suitors  be  prejudiced? 

There  is,  however,  another  argument  against  the  use  of  force 
against  a debtor  State,  namely,  the  fact  that  force  is  never 
used  in  such  cases  by  the  larger  States  in  their  international 
relations,  but  is  a remedy,  one  may  say  a rod  in  pickle,  reserved 
solely  for  the  weak  and  defenseless  State.  A principle,  even 
if  generally  recognized,  but  applied  solely  to  small  States  for 
the  benefit  of  large  States,  cannot  find  favor  in  a system  of 
international  law  supposed  to  be  based  upon  equality  and 
justice. 

2.  Dr.  Drago’s  Note  of  December  29,  1902 

The  above  line  of  argument,  although  limited  to  a particu- 
lar case,  found  its  formal  expression  in  the  note,  dated  Decem- 
ber 29,  1902,  by  Dr.  Luis  M.  Drago,  minister  of  foreign  rela- 
tions of  the  Argentine  Republic  to  Senor  Martin  Garcia  Merou, 

^ For  the  proceedings  and  award  of  The  Hague  tribunal  in  1903  con- 
cerning these  claims,  see  American  Journal  ol  International  Law  (1908), 
Vol.  11,  pp.  902-911. 


LIMITATION  OF  THE  EMPLOYMENT  OF  FORCE  393 


minister  of  the  Argentine  Republic  to  the  United  States,  a 
note  which  called  general  attention  to  the  dangers  and  diffi- 
culties arising  from  the  use  of  force  for  the  collection  of  public 
indebtedness/  This  note,  due  to  a high-minded  and  generous 
sympathy  for  South  America,  has  not  only  placed  its  author 
in  the  front  rank  of  publicists,  but  its  recognition,  albeit  in 
modified  form,  by  The  Hague  Conference  enrolls  Luis  M.  Drago 
among  the  benefactors  of  his  kind. 

Dr.  Drago’s  note  was  provoked  by  the  blockade  of  Venezue- 
lan ports  by  the  governments  of  Germany,  Great  Britain  and 
Italy  in  the  year  1902,  caused  by  a failure  on  the  part  of  Vene- 
zuela to  indemnify  subjects  of  the  blockading  States  for  the 
damages  suffered  during  recent  revolutions  and  wars  in  Vene- 
zuela, and  the  failure  to  meet  the  external  debt  as  it  fell  due. 
It  should  be  said,  however,  that  each  of  the  claimant  nations 
endeavored  to  settle  its  difficulties  with  Venezuela  by  negotia- 
tion and  that  each  offered  arbitration  of  the  difficulties,  which 
offer  Venezuela  refused  as  inconsistent  with  its  internal  organi- 
zation and  with  its  dignity  as  a sovereign  nation.  Dr.  Drago 
did  not  discuss  the  claims  arising  from  revolution  and  wars, 
nor  did  he  devote  attention  to  claims  against  Venezuela 
arising  from  ordinary  contracts.  His  note  is  devoted  princi- 
pally to  forcible  collection  of  the  public  debt  suggested  by  the 
blockade  of  Venezulan  ports.  In  the  opening  paragraphs  of 
his  famous  note.  Dr.  Drago  stated,  in  outlining  clearly  the 
conditions  under  which  the  creditor  advances  his  loan  to  the 
debtor  nation,  that  the  lender  always  takes  into  account  the 

* For  the  Spanish  text  of  the  note,  see  Dr.  Drago’s  Cobro  Coercitivo  de 
Deudas  Piiblicas  (1906),  pp.  9-26.  An  English  translation  of  the  Note  is 
to  be  found  in  American  Journal  of  International  Law  (1907),  Vol.  I,  sup- 
plement, pp.  1-6.  For  a careful  exposition  of  the  doctrine  by  its  author, 
see  Dr.  Drago’s  State  Loans  in  their  Relation  to  International  Policy, 
American  Journal  of  International  Law  (1907),  Vol.  I,  pp.  692-726. 

For  a sympathetic  appreciation  of  the  doctrine  and  the  principles  in- 
volved, see  M.  F.  de  Martens’  Par  la  Justice  vers  la  Paix  (1904). 

The  most  elaborate  presentation  of  the  Doctrine  is  to  be  found  in  La 
Doctrina  Drago : CoUeccion  de  Documentos  con  una  Advertencia  Preliminar 
de  S.  Perez  Tiiana  y una  Introduccion  de  W.  T.  Stead  (1908). 

This  work  gives  the  entire  proceedings  of  the  Second  Hague  Conference 
concerning  the  Doctrine  (pp.  87-181)  and  a bibliography  (pp.  255-257). 


394 


THE  HAGUE  PEACE  CONFERENCES 


resources  of  the  country  and  the  probability  that  the  obliga- 
tions will  be  fulfilled;  that  all  Governments  thus  enjoy  differ- 
ent credit  according  to  their  degree  of  civilization,  culture 
and  their  business  conduct;  that  these  conditions  are  con- 
sidered before  the  loan  is  made  and  the  terms  arranged  accord- 
ingly, and  that  the  lender  knows  he  is  contracting  with  a 
sovereign  entity  in  which  exists  the  inherent  qualification 
that  no  proceedings  for  the  execution  of  a judgment  may  be 
instituted  or  carried  out  against  it. 

Dr.  Drago  then  stated  that  the  Eleventh  Amendment  to  the 
Constitution  of  the  United  States  forbade  a citizen  or  subject  to 
sue  a member  of  the  American  Union;  but  that  the  Argentine 
Government  has  made  its  provinces  suable  and  that  suit  may 
be  brought  against  the  republic  itself  before  its  supreme  court 
on  contracts  entered  into  with  individuals.  Dr.  Drago  does 
not  maintain  that  a State  should  not  be  sued  for  its  contracts, 
but  that,  after  suit  brought  and  the  indebtedness  determined 
by  legal  judgment,  the  State  should  not  be  deprived  of  the 
right 

to  choose  the  manner  and  the  time  of  payment,  in  which  it 
has  as  much  interest  as  the  creditor  himself,  or  more,  since  its 
credit  and  its  national  honor  are  involved  therein. 

He  insists  that  the  decision  imposing  the  duty  to  pay 

whether  it  be  given  by  the  tribunals  of  the  country  or  by  those 
of  international  arbitration,  constitutes  an  indisputable  title 
which  cannot  be  compared  to  the  uncertain  right  of  one  whose 
claims  are  not  recognized  and  who  sees  himself  driven  to  an 
appeal  to  force  in  order  that  they  may  be  satisfied. 

The  attempt  therefore  to  enforce  the  payment  of  Venezuelan 
indebtedness  was  viewed  as  a great  hardship  by  Dr.  Drago, 
who  declared  that 

if  such  proceedings  were  to  be  definitively  adopted  they  would 
establish  a precedent  dangerous  to  the  security  and  the  peace 
of  the  nations  of  this  part  of  America. 

That  Dr.  Drago  has  recognized  precedent  for  his  apprehension 
is  apparent  to  anyone  who  considers  the  joint  bombardment 
of  Mexico  in  the  year  1860  by  Great  Britain,  France,  and 


LIMITATION  OF  THE  EMPLOYMENT  OF  FORCE  395 


Spain  in  order  to  force  the  payment  of  public  indebtedness. 
But  to  quote  Dr.  Drago 

the  collection  of  loans  by  military  means  implies  territorial 
occupation  to  make  them  effective,  and  territorial  occupation 
signifies  the  suppression  or  subordination  of  the  government 
of  the  countries  on  which  it  is  imposed. 

Dr.  Drago’s  statement  is  not  so  much  a prediction  or  pro- 
phecy as  it  is  a concise  statement  of  actual  happenings ; for  it 
is  well  known  that  the  bombardment  of  Mexico  degenerated 
into  a military  occupation,  and  that  the  scoundrel  who  throttled 
one  republic  in  France  was  prepared  to  erect  an  empire  upon 
the  ruins  of  another  in  America.  The  withdrawal  of  the 
French  troops  from  Mexico,  resulting  in  the  downfall  and 
tragic  death  of  Maximilian,  was  due  to  the  outspoken  intention 
of  the  United  States  to  enforce  the  Monroe  Doctrine.  Dr. 
Drago  is  aware  of  the  close  relation  between  the  Monroe  and 
the  Drago  Doctrine,  and  in  his  note  refers  to  the  following 
passage  from  Monroe’s  famous  message: 

The  American  continents  are  henceforth  not  to  be  considered 
as  subjects  for  future  colonization  by  any  European  powers.  With 
the  governments — whose  independence  we  have  acknowledged, 
we  could  not  view  any  interposition  for  the  purpose  of  oppressing 
them,  or  controlling  in  any  other  manner  their  destiny,  by  any 
European  power  in  any  other  light  than  as  the  manifestation 
of  an  unfriendly  disposition  toward  the  United  States.^ 

It  is  true  that  the  fear  of  colonization  has  passed  because 
every  foot  of  American  territory  is  controlled  by  an  organized 
and  recognized  government.  But  the  desire  for  commercial 
expansion  and  the  struggle  to  gain  the  markets  of  the  world 
might  well  lead  unscrupulous  powers  to  protect  their  citizens 
even  by  an  occupation  for  a longer  or  shorter  period  of  Amer- 
ican soil.  Dr.  Drago  calls  attention  to  the  fact  that 

thinkers  of  the  highest  order  have  pointed  out  the  desirability  of 
turning  in  this  direction  the  great  efforts  which  the  principal  powers 

* For  President  Monroe’s  Message  to  Congress,  dated  December  2,  1823, 
containing  the  so-called  Monroe  Doctrine,  see  Richardson’s  Messages  and 
Papers  of  the  Presidents,  Vol.  II,  p.  209,  pp.  217-218. 

For  the  origin,  nature  and  application  of  the  Doctrine,  see  Moore’s  Inter- 
national Law  Digest,  Vol.  VI,  pp.  369-604. 


396 


THE  HAGUE  PEACE  CONFERENCES 


of  Europe  have  exerted  for  the  conquest  of  sterile  regions  with 
trying  climates  and  in  remote  regions  of  the  earth.  The  Euro- 
pean writers  are  already  many  who  point  to  the  territory  of 
South  America  with  its  great  riches,  its  sunny  skies,  and  its 
climate  propitious  for  all  products,  as,  of  necessity,  the  stage 
on  which  the  great  powers  which  have  their  arms  and  imple- 
ments of  conquest  already  prepared,  are  to  struggle  for  the 
supremacy  in  the  course  of  this  century.” 

Dr.  Drago  does  not  deny  the  duty  of  the  South  American 
countries  to  meet  their  obligations  and  to  fulfill  the  duties 
imposed  by  international  law  on  civihzed  peoples,  and  states 
that  the  principle  which  the  Argentine  Republic  maintains 
and  would  see  adopted  is 

that  the  public  debt  can  not  occasion  armed  intervention  nor 
even  the  actual  occupation  of  the  territory  of  American  nations 
by  a European  power. 

Dr.  Drago  then  speaks  of  the  loss  of  prestige  and  credit 
experienced  by  nations  which  fail  to  satisfy  the  rightful  claims 
of  their  creditors,  but  states  that  failure  to  meet  interna- 
tional obligations  is  often  the  result  of  necessity  rather  than 
desire.  He  cites  specifically  the  failure  of  Argentine  to  pay 
the  English  loan  of  1824,  owing  to  anarchy  and  disturbance  in 
the  republic ; but  he  mentions  the  fact  that,  after  an  interrup- 
tion of  thirty  years,  Argentine  met  its  obligations  without  any 
steps  having  been  taken  by  its  creditors.  He  feels  that  the 
case  of  Argentine  is  not  isolated,  and  that  the  countries 
generally  if  given  time  and  opportunity  will  likewise  meet  their 
obligations. 

Long,  perhaps,  is  the  road  that  the  South  American  nations 
still  have  to  travel.  But  they  have  faith  enough  and  energy 
and  worth  sufficient  to  bring  them  to  their  final  development 
with  mutual  support. 

It  will  be  noted  that  Dr.  Drago  takes  advantage  of  the 
Venezuelan  situation  in  order  to  establish  a principle,  namely, 
that  the  collection  of  public  debts  shall  not  be  effected  by 
force,  for  bombardment  and  occupation  for  such  purpose  are 
but  conquest  and  annexation  in  disguise.  It  will  also  be 
observed  that  Dr.  Drago  eliminates  from  consideration  dam- 
age arising  from  war,  revolution  and  ordinary  contract  debts, 


LIMITATION  OF  THE  EMPLOYMENT  OP  FOECE 


397 


but  the  public  took  no  note  of  the  limitation  contained  in 
Dr.  Drago’s  dispatch,  and  subjected  to  examination  and 
criticism  the  doctrine  that  force  may  properly  be  used  to 
collect  national  indebtedness  of  any  kind. 

Dr.  Drago’s  note  was  read  and  discussed  in  America  and 
Europe  with  great  interest,  the  doctrine  it  propounded  was 
designated  the  “ Drago  Doctrine”  and  such  it  will  in  all  prob- 
ability continue  to  be  called.  The  note,  it  will  be  recalled, 
was  intended  for  transmission  to  the  Secretary  of  State,  the 
late  Mr.  John  Hay,  who  acknowledged  it  in  a memorandum 
which  neither  assented  to  nor  dissented  from  the  propositions 
set  forth;  but  pointed  out,  quoting  from  the  President’s 
message  to  Congress,  December  3,  1901,  that  the  Monroe 
Doctrine  did  not  guarantee  any  State  against  punishment 
“if  it  misconducts  itself,  provided  that  punishment  does  not 
take  the  form  of  the  acquisition  of  territory  by  any  non- 
American  power.”  At  the  same  time  he  stated  by  apt  quotation 
from  the  President’s  message  of  December  2,  1902,  the  indubi- 
table fact  that  “no  independent  nation  in  America  need  have 
the  slightest  fear  of  aggression  from  the  United  States,”  and 
that,  as  a partisan  of  arbitration,  the  United  States  favored  the 
submission  of  “ claims  by  one  State  against  another  growing 
out  of  individual  wrongs  or  national  obligations,  as  well  as 
the  guarantee  for  the  execution  of  the  award,”  to  “an  impar- 
tial arbitration  tribunal.”  It  will  be  seen  that  the  note  of  Dr. 
Drago  was  the  occasion,  and  the  reply  of  the  Secretary  of  State 
was  the  germ  of  the  convention  for  the  restriction  of  force  in 
the  collection  of  contract  debts. 

The  Third  Pan-American  Conference  was  to  meet  at  Rio  de 
Janeiro  in  the  summer  of  1906,  and  Mr.  Root,  as  successor  to 
Mr.  Hay,  was  anxious  to  have  the  question  of  the  use  of  force 
considered  by  the  American  nations  there  represented.  In 
a letter  to  the  committee  on  program  for  the  Third  Interna- 
tional Conference  of  the  American  Republics,  dated  Washing- 
ton, March  22,  1906,  Mr.  Root  said: 

I believe  that  if  the  acceptance  of  the  principle  that  con- 
tracts between  a nation  and  an  individual  are  not  collectible 


398 


THE  HAGUE  PEACE  CONFEEENCES 


by  force,  concerning  which  subject  His  Excellency  Dr.  Drago, 
the  distinguished  Argentine  Minister  for  Foreign  Affairs,  in 
1902  addressed  an  able  note  to  the  Argentine  Minister  in  Wash- 
ington— can  be  secured  at  The  Hague,  a most  important  step 
will  have  been  gained  in  the  direction  of  narrowing  the  causes 
of  war.  For  this  reason  I hope  the  Committee  will  deem  it  well 
to  consider  the  inclusion  of  this  subject  with  the  others  I have 
referred  to.' 

In  the  instructions  to  the  American  delegation  to  the  Rio 
Conference,  Mr.  Root  said: 

It  has  long  been  the  established  policy  of  the  United  States 
not  to  use  its  armed  forces  for  the  collection  of  ordinary  contract 
debts  due  to  its  citizens  by  other  governments.  We  have  not 
considered  the  use  of  force  for  such  a purpose  consistent  with 
that  respect  for  the  independent  sovereignty  of  other  members 
of  the  family  of  nations  which  is  the  most  important  principle 
of  international  law  and  the  chief  protection  of  weak  nations 
against  the  oppression  of  the  strong.  It  seems  to  us  that  the 
practice  is  injurious  in  its  general  effect  upon  the  relations  of 
nations  and  upon  the  welfare  of  weak  and  disordered  states, 
whose  development  ought  to  be  encouraged  in  the  interests  of 
civilization;  that  it  offers  frequent  temptation  to  bullying  and 
oppression  and  to  unnecessary  and  unjustifiable  warfare.  We 
regret  that  other  powers,  whose  opinions  and  sense  of  justice 
we  esteem  highly,  have  at  times  taken  a different  view  and  have 
permitted  themselves,  though  we  believe  with  reluctance,  to 
collect  such  debts  by  force.  It  is  doubtless  true  that  the  non- 
payment of  public  debts  may  be  accompanied  by  such  circum- 
stances of  fraud  and  wrong-doing  or  violation  of  treaties  as  to 
justify  the  use  of  force.  This  Government  would  be  glad  to 
see  an  international  consideration  of  the  subject  which  shall 
discriminate  between  such  cases  and  the  simple  nonperformance 
of  a contract  with  a private  person,  and  a resolution  in  favor 
of  reliance  upon  peaceful  means  in  cases  of  the  latter  class. 

Mr.  Root  said  that  strong  support  would  be  found  for  this 
view  in  the  excellent  letter  of  Mr.  Drago  of  December  29, 
1902,  but  stated  that,  inasmuch  as  most  of  the  American 
countries  were  still  debtor  nations  and  the  European  countries 
the  creditors,  it  was  not  for  the  Rio  Conference  to  undertake 
to  make  such  a discrimination  or  to  resolve  upon  such  a rule, 
but  that  the  true  course  was  to  request  The  Hague  Conference, 

'■  Cobro  Coercitivo  de  Deudas  Piiblicas,  pp.  156-157. 


LIMITATION  OF  THE  EMPLOYMENT  OF  FORCE  399 


where  both  creditors  and  debtors  would  be  assembled,  to 
consider  the  subjects 

The  question  of  the  collection  of  contract  debts  was  included 
in  the  program  in  the  following  form: 

A resolution  recommending  that  the  Second  Peace  Confer- 
ence at  The  Hague  be  requested  to  consider  whether,  and  if  at 
all,  to  what  extent,  the  use  of  force  for  the  collection  of  public 
debts  is  admissible. 

After  much  discussion  it  was  unanimously 

Resolved  by  the  Third  International  Conference  of  the 
American  States,  assembled  in  Rio  Janeiro,  to  recommend  to 
the  governments  represented  therein  that  they  consider  the 
point  of  inviting  the  Second  Peace  Conference  at  The  Hague 
to  consider  the  question  of  the  compulsory  collection  of  public 
debts,  and,  in  general,  means  tending  to  diminish  between  na- 
tions conflicts  having  an  exclusively  pecuniary  origin.^ 

Pursuant  to  this  resolution,  the  United  States  reserved  the 
right  to  bring  to  discussion  at  the  Second  Hague  Conference 
the  matter  of  the  forcible  collection  of  contract  debts.®  Accord- 
ingly the  Secretary.of  State  instructed  the  American  delegation  to 

ask  for  the  consideration  of  this  subject  by  the  Conference. 
It  is  not  probable  that  in  the  first  instance  all  the  nations  repre- 
sented at  the  Conference  will  be  willing  to  go  as  far  in  the  estab- 
lishment of  limitations  upon  the  use  of  force  in  the  collection 
of  this  class  of  debts  as  the  United  States  would  like  to  have 
them  go,  and  there  may  be  serious  objection  to  the  consideration 
of  the  subject  as  a separate  and  independent  topic.  If  you 
find  such  objections  insurmountable,  you  will  urge  the  adoption 
of  provisions  under  the  head  of  arbitration  looking  to  the  estab- 
lishment of  such  limitation.  The  adoption  of  some  such  pro- 
vision as  the  following  may  be  suggested,  and,  if  no  better  solu- 
tion seems  practicable,  should  be  urged: 

The  use  of  force  for  the  collection  of  a contract  debt  alleged 
to  be  due  by  the  Government  of  any  country  to  a citizen  of  any 
other  country  is  not  permissible  until  after 

‘ Report  of  the  Delegates  of  the  United  States  to  the  Third  International 
Conference  of  the  American  States,  pp.  41—42. 

’ Ibid.,  pp.  12-14. 

’ For  text  of  the  reservation,  see  ante,  p.  104. 


400 


THE  HAGUE  PEACE  CONFERENCES 


1.  The  justice  and  amount  of  the  debt  shall  have  been  de- 
termined by  arbitration,  if  demanded  by  the  alleged  debtor. 

2.  The  time  and  manner  of  payment,  and  the  security, 
if  any,  to  be  given  pending  payment,  shall  have  been  fixed  by 
arbitration,  if  demanded  by  the  alleged  debtor.* 


3.  The  Discussion  of  the  Question  of  Contract 
Debts  in  the  First  Commission 

At  the  second  plenary  session  of  the  Conference,  on  June 
19,  1907,  Mr.  Choate  reserved  in  a letter  addressed  to  the 
President  of  the  Conference  the  right  to  present  to  the  Con- 
ference the  question 

of  reaching  an  agreement  for  the  limitation  of  the  employment 
of  force  in  the  recovery  of  ordinary  public  debts,  having  their 
origin  in  contract. 

And  at  the  first  session  of  the  First  Commission,  held  on  June 
22,  1907,  General  Horace  Porter,  to  whom  the  matter  of  con- 
tract debts  had  been  entrusted,  announced  on  behalf  of  the 
United  States  a proposition  prohibiting  the  employment  of 
force  for  the  recovery  of  debts  before  recourse  to  arbitration. 
The  proposition  as  submitted  was  in  the  following  form; 

In  order  to  prevent  between  nations  armed  conflicts  solely 
of  a pecuniary  origin  arising  from  contractual  debts  claimed 
as  due  from  the  subjects  or  citizens  of  one  country  by  the  govern- 
ment of  another  country  and  in  order  to  guarantee  that  all  con- 
tractual debts  of  this  nature  which  shall  not  have  been  settled 
peaceably  through  the  diplomatic  channels  shall  be  submitted  to 
arbitration,  it  is  agreed  that  a recourse  to  no  measures  of  coercion 
involving  the  employment  of  military  or  naval  force  for  the 
recovery  of  such  contractual  debts  shall  take  place  until  an 
offer  of  arbitration  has  been  made  by  the  creditor  and  refused 
or  left  without  response  by  the  debtor,  or  until  the  arbitration 
has  taken  place  and  the  debtor  state  has  failed  to  conform  to 
the  sentence  rendered.  It  is  further  agreed  that  this  arbitration 
shall  be  in  conformity  with  the  procedure  of  Chapter  III  of  the 
convention  for  the  pacific  settlement  of  international  disputes 
adopted  at  The  Hague  and  that  it  shall  determine  the  equity  and 
the  amount  of  the  debt,  the  time  and  the  mode  of  its  payment. 


For  Instructions  to  the  American  Delegation,  see  Vol.  II,  pp.  188-189. 


LIMITATION  OF  THE  EMPLOYMENT  OF  FOECE 


401 


and  the  guarantee  if  there  be  any  to  give  during  the  delay  of 
payment.  ^ 

On  the  sixteenth  of  July,  the  amended  proposition  concerning 
contract  debts  was  justified  by  General  Porter  in  a long  and 
careful  address,  too  long  to  quote  in  full,  but  too  important  tp 
be  passed  over  without  quoting  at  least  the  concluding  para- 
graphs. 

After  stating  the  nature  of  the  problem,  the  injustice  in 
coercing  a debtor  to  pay  a debt  often  grossly  exaggerated, 
which  payment  would  enure  to  the  sole  benefit  of  the  claimant, 
not  the  claimant  country,  at  the  expense,  however,  of  his 
country,  and  after  showing  that  a nation  may  be  prevented 
from  meeting  its  obligations  by  “insurrections,  revolutions, 
loss  of  crops,  floods,  earthquakes,  or  other  calamities  beyond 
its  power,”  and  finally  after  showing  that  even  defaulting 
nations  in  course  of  time  met  their  obligations  and  at  present 
enjoy  a high  credit  in  the  family  of  nations,  the  General  con- 
cluded his  address  as  follows : 

Neither  the  prestige  nor  the  honor  of  a State  can  be  con- 
sidered at  stake  in  refusing  to  enforce  by  coercive  action  the 
payment  of  a contractual  debt  due  or  claimed  to  be  due  to  one 
of  its  subjects  or  citizens  by  another  nation.  There  is  no  inhe- 
rent right  on  their  part  to  have  a private  contract  converted 
into  a national  obligation.  If  so,  it  would  be  practically  equiva- 
lent to  having  the  Government  guarantee  the  payment  at  the 
outset. 

The  ablest  writers  upon  International  Law  consider  that  the 
State  owes  no  such  duty  to  its  citizens  or  subjects  and  that  its 
action  in  such  cases  is  entirely  optional. 

While  these  writers  differ  as  to  the  expediency  of  intervention, 
research  shows  that  a majority  are  of  opinion  that  there  exists 
no  such  obligation. 

* The  original  proposition  was  slightly  modified  by  amending  the  phrase 
“claim  as  due  to  the  subjects  or  citizens  of  one  country  by  the  government 
of  another  country  ” to  read,  “ claimed  from  a government  of  one  country 
by  the  government  of  another  country  as  due  to  its  subjects  or  citizens,” 
and  in  the  latter  part  of  the  paragraph  the  word  “claimant”  was  substi- 
tuted for  the  word  “ creditor.”  Otherwise  the  original  and  modified  texts 
were  identical  except  in  certain  respects  to  be  discussed  later. 


402 


THE  HAGUE  PEACE  CONFEKENCES 


The  following  citations  from  the  written  opinions  of  eminent 
statesmen,  diplomatists  and  jurisconsults  are  valuable  and 
instructive  upon  this  subject: 

Lord  Palmerston,  in  1848,  in  a Circular  addressed  to  the 
Representatives  of  Great  Britain  in  foreign  countries,  referring 
to  the  unsatisfied  claims  of  British  subjects  who  were  holders 
of  public  bonds  of  foreign  States,  after  asserting  that  the  ques- 
tion as  to  whether  his  Government  should  make  the  matter  the 
subject  of  diplomatic  negotiations  was  entirely  a matter  of  dis- 
cretion and  by  no  means  a question  of  international  right,  said: 

“ It  has  hitherto  been  thought  by  the  successive  Governments 
of  Great  Britain  undesirable  that  British  subjects  should  invest 
their  capital  in  loans  of  foreign  Governments  instead  of  employ- 
ing it  in  profitable  undertalangs  at  home;  and  with  a view  to 
discourage  hazardous  loans  to  foreign  Governments,  who  may 
be  either  unable  or  unwilling  to  pay  the  stipulated  interest 
thereupon,  the  British  Government  has  hitherto  thought  it  the 
best  policy  to  abstain  from  taking  up  as  international  questions 
the  complaints  made  by  British  subjects  against  foreign  Gov- 
ernments which  have  failed  to  make  good  their  engagements  in 
regard  to  such  pecuniary  transactions.” 

In  1861  Lord  John  Russel,  in  a communication  to  Sir  C.  J. 
Wylie,  wrote:  “It  has  not  been  the  policy  of  Her  Majesty’s 
Government,  although  they  have  always  held  themselves  free 
to  do  so,  to  interfere  authoritatively  on  behalf  of  those  who  have 
chosen  to  lend  their  money  to  foreign  Governments ” 

Lord  Salisbury  in  1880  announced  a similar  policy.  In  a 
debate  in  the  British  Parliament — December,  1902 — during 
the  controversy  with  Venezuela,  Mr.  Balfour,  the  Prime  Minister, 
said:  “ I do  not  deny,  in  fact  I freely  admit,  that  bondholders 
may  occupy  an  international  position  which  may  require  inter- 
national action;  but  I look  upon  such  action  with  the  gravest 
doubt  and  suspicion,  and  I doubt  whether  we  have  in  the  past 
ever  gone  to  war  for  the  bondholders,  for  those  of  our  country- 
men who  have  lent  money  to  a foreign  Government;  and  I con- 
fess that  I should  be  very  sorry  to  see  that  made  a practice  in 
this  country.” 

Alexander  Hamilton  in  the  early  days  of  the  Government 
of  the  United  States  affirmed  the  same  principles  saying : “ Con- 

tracts between  a nation  and  private  individuals  are  obligatory 
according  to  conscience  of  the  sovereign  and  may  not  be  the 
object  of  compelling  force.  They  confer  no  right  of  action  con- 
trary to  the  sovereign  will.” 

In  1871  Mr.  Fish,  then  Secretary  of  State  of  the  United  States, 
wrote: 

“ Our  long  settled  policy  and  practice  has  been  to  decline  the 
formal  intervention  of  the  Government  except  in  case  of  wrong 


LIMITATION  OF  THE  EMPLOYMENT  OP  FORCE  403 

and  injury  to  person  and  property  such  as  the  common  law 
denominates  ‘torts’  and  regards  as  inflicted  by  force,  and  not 
the  result  of  voluntary  engagements  or  contracts.” 

In  1881  Mr.  Blaine,  Secretary  of  State  of  the  United  States, 
wrote  that  a person,  “ voluntarily  entering  into  a contract  with 
the  Government  of  a foreign  country  or  with  the  subjects  or 
citizens  of  such  foreign  powers,  for  any  grievance  he  may  have 
or  losses  he  may  suffer  resulting  from  such  contract,  is  remitted 
to  the  laws  of  the  country  with  whose  Government  or  citizens 
the  contract  is  entered  into  for  redress.” 

In  1885  Mr.  Bayard,  then  Secretary  of  State  of  the  United 
States,  wrote  in  a dispatch  on  this  subject: 

“ All  that  our  Government  undertakes  to  do,  when  the  claim 
is  merely  contractual,  is  to  interpose  its  good  offices,  in  other 
words,  to  ask  the  attention  of  the  foreign  sovereign  to  the  claim; 
and  that  is  only  done  when  the  claim  is  one  susceptible  of  strong 
and  clear  proofs.” 

General  Porter  then  quoted  the  pertinent  portion  of  Secre- 
tary Root’s  instructions  to  the  American  delegates  to  the  Rio 
Conference,^  adopted  by  the  President  in  1906  with  the  added 
paragraph : 

It  appears  that  modern  public  opinion  is  decidedly  opposed 
to  the  collection  by  force  of  contractual  debts.  The  American 
Journal  of  International  Law  in  its  first  quarterly  number  of 
this  year  says:  ‘The  tendency  among  publicists  is  certainly 
toward  the  acceptance  of  the  principle  of  non-intervention  as 
the  correct  and  normal  or  everyday  rule  of  international  law 
and  practice.”  .... 

It  is  not  necessary  to  recall  the  early  consideration  and  pro- 
found study  given  to  this  subject  by  the  Argentine  Repubhc 
and  the  exhaustive  discussion  of  the  question  and  of  kindred 
subjects  contained  in  the  writings  of  the  former  Secretary  of 
State  of  that  country,  at  present  one  of  our  highly  esteemed 
colleagues  in  this  Conference. 

The  view  of  the  majority  seems  to  be  that  the  correct  rule  of 
international  law  is  non-intervention,  but  that  intervention 
is  either  legally  or  morally  permissible  in  extreme  and  excep- 
tional cases. 

Debt-collecting  expeditions  have  seldom  proved  a success. 
In  this  age  it  is  assuming  a grave  responsibility  to  relegate  dis- 
puted money  claims  to  the  dominion  of  force  instead  of  law 
and  substitute  the  science  of  destruction  for  the  creative  arts 
of  Peace. 


* Printed,  ante,  p.  398. 


404 


THE  HAGUE  PEACE  CONFERENCES 


The  principle  of  non-intervention  by  force  would  be  of  incal- 
culable benefit  to  all  parties  concerned. 

First,  to  the  nation  whose  subjects  or  citizens  have  become 
creditors  of  a foreign  Government  in  that  it  would  be  a warning 
to  a class  of  persons  too  apt  to  trade  upon  the  necessities  of 
feeble  and  embarrassed  Governments  and  then  expect  their 
Government  to  become  responsible  for  the  success  of  their 
operations,  as  it  would  serve  to  discourage  their  transactions. 
It  would  enable  the  Government  to  continue  its  normal  relations 
with  the  foreign  State,  avoid  incurring  its  ill  will  and  suffering 
perhaps  a loss  of  its  commerce.  Such  an  attitude  would  also 
save  it  from  all  risk  of  comphcations  with  neutral  powers. 

Secondly,  the  recognition  of  this  principle  would  be  a sub- 
stantial relief  to  neutrals,  the  interruption  to  whose  commerce 
by  blockades,  hostile  operations  and  the  consequent  rise  in 
insurance  rates  becomes  a serious  menace  to  their  foreign  trade. 

Thirdly,  it  would  be  of  advantage  to  the  debtor  States,  as  it 
would  be  an  announcement  to  the  lenders  of  money,  that  they  would 
havetobasetheiroperations  solely  upon  considerations  of  thegood 
faith  of  the  Government,  the  national  credit,  the  justice  of  local 
courts,  and  the  economy  practiced  in  the  administration  of 
pubhc  affairs.  This  would  relieve  such  States  from  the  impor- 
tunities of  the  speculative  adventurer  who  tempts  them  with 
the  proffer  of  large  loans  which  may  lead  to  national  extrava- 
gance and  in  the  end  threaten  the  seizure  of  their  property  and 
the  violation  of  their  sovereignty.  The  knowledge  that  all 
disputed  pecuniary  claims  would  be  subject  to  adjudication  by 
an  impartial  tribunal  would  be  apt  to  lead  prominent  bankers 
and  contractors  to  feel  that  such  claims  would  be  settled 
promptly  without  serious  disturbance  to  the  administration 
of  the  country’s  public  affairs  and  without  the  necessity  of 
assuming  the  task  of  prevailing  upon  their  Government  to 
undertake  the  collection  of  their  claims  by  force  of  arms.  In 
such  case  responsible  financial  men  and  institutions  abroad 
would  be  more  likely  to  negotiate  loans  and  make  their  terms 
fair  and  reasonable.  The  Permanent  Court  of  Arbitration  at 
The  Hague  would  naturally  be  given  the  preference  in  selecting 
for  the  settlement  of  such  claims  an  impartial  tribunal. 

One  significant  feature  of  this  Conference  is  that  for  the  first 
time  in  history  the  creditor  and  the  debtor  nations  of  the  world 
are  brought  together  in  friendly  council,  and  it  seems  a singu- 
larly appropriate  occasion  for  an  earnest  endeavor  to  agree 
upon  some  rule  concerning  the  treatment  of  contractual  debts 
which  may  commend  itse.lf  to  all  here  assembled  and  result  in 
a general  treaty  on  the  subject  among  the  nations  represented. 

No  experienced  statesman  can  doubt  that  a question  which, 
if  left  open,  may  work  so  much  evil  in  exciting  and  disturbing 


LIMITATION  OP  THE  EMPLOYMENT  OP  FORCE  405 

the  Commonwealth  of  Nations  by  threats,  rumors  and  declara- 
tions of  war,  will  some  day  be  removed  from  the  causes  of 
armed  conflicts,  and  if  the  present  Conference  from  which  so 
much  is  expected  by  the  onlooking  world  neglects  this  proffered 
opportunity  of  accomplishing  such  a beneficent  result  it  will 
record  a regrettable  failure  and  lose  the  credit  of  having  per- 
formed a far-reaching  act  in  the  true  interests  of  the  world’s 
Peaced 

In  the  commission  two  important  addresses  were  delivered, 
one  by  Dr.  Drago  through  whose  famous  note  the  subject  was 
given  international  standing,  and  the  other  by  M.  Ruy  Barbosa, 
who,  while  approving  in  general  the  doctrine,  took  issue  with 
Dr.  Drago  in  the  matter  of  public  debts. 

Dr.  Drago  first  remarked  that  pecuniary  claims  arose  (1) 
from  injuries  sustained  by  foreign  subjects  on  account  of 
unlawful  acts  committed  either  by  the  Government  or  by  the 
citizens  of  the  country  where  such  subjects  reside;  (2)  from 
common-law  agreements  between  the  citizens  or  subjects  of 
the  claimant  nation  and  the  authorities  of  another  country; 
and  (3)  from  claims  existing  in  connection  with  the  public 
debt  consisting  of  national  loans  secured  by  bonds. 

As  to  the  first  and  second  class  of  claims.  Dr.  Drago  stated 
that  they  came  within  the  jurisdiction  of  the  courts  of  the 
debtor  country  according  to  the  Law  of  Nations  and  are  sub- 
ject to  the  rules  and  provisions  of  private  law;  that  the  con- 
stitutions of  all  civilized  countries  determine  the  procedure 
to  be  followed  in  such  cases  and  that  a universally  accepted 
principle  of  international  law  provides  that  local  remedies 
should  be  exhausted  before  recourse  is  had  to  diplomatic 
channels  and  procedure;  that  “there  can  be  no  real  difficulty 
about  utilizing  this  remedy  for  there  are  courts  of  claims  every- 
where with  the  necessary  jurisdiction  to  take  cognizance  of 
this  kind  of  litigation,”  and  that  “the  lack  of  any  Court  of 
Claims  and  the  refusal  to  create  one,  as  well  as  sentences  openly 
contrary  to  the  laws  and  to  the  fundamental  principles  of  law 


* La  Deuxi^me  Conference  Internationale  de  la  Paix,  Vol.II,  First  Com- 
mission, First  Sub-Commission,  5th  Session,  July  16,  1907. 


406 


THE  HAGUE  PEACE  CONFERENCES 


itself,  would  constitute  what  is  characterized  in  jurisprudence 
as  a 'denial  of  justice,’  and  would  fall  within  the  sphere  of 
activity  of  the  Law  of  Nations;”  that  only  in  case  of  a difference 
of  opinion  as  to  the  foundation  and  justice  of  the  sentence 
rendered  by  the  courts  of  the  debtor  nation,  . . . . 

would  there  be  reason  to  apply  arbitration;”  and  that 
“ finally,  it  would  only  be  after  all  peaceful  remedies  had  been 
exhausted  that  the  employment  of  other  measures  could  be 
justified.” 

With  regard  to  foreign  loans,  the  third  class  of  claims.  Dr. 
Drago  stated  that  they  constitute  a special  class  of  obligations 
quite  distinct  from  the  others. 

The  issue  of  Government  bonds  is,  like  the  issue  of  money,  a 
positive  manifestation  of  sovereignty. 

It  is  by  an  act  of  sovereignty  that  a nation  orders  payment  of 
coupons  at  maturity,  and  quite  obviously  it  is  by  an  act  of  the 
same  character  that  it  decides,  in  a few  special  cases,  to  suspend 
payment  on  the  debt.  It  is  not,  in  reality,  any  particular  credi- 
tor who  has  contracted  directly  with  the  government,  but  an 
indeterminate,  unnamed  person  who  purchases  bonds  at  their 
current  value  in  the  market,  which  value  is  more  or  less  change- 
able, but  always  serves  as  a perfect  index,  from  the  very  begin- 
ning, of  the  amount  of  risk  they  are  running  and  the  degree  of 
certainty  of  their  favor. 

The  speaker  argued  that  as  private  individuals  were  not 
permitted  to  summon  a government  before  its  own  judges  on 
account  of  the  suspension  of  payment  on  public  loans,  the 
denial  of  justice  is  not  manifest;  that  if  the  legal  distinction 
between  ordinary  contracts  and  public  loans  were  not  clearly 
established  "we  might  always  arrive  at  the  practical  conclu- 
sion that  there  are  always  courts  when  it  is  a question  of 
the  former  whereas  there  are  none  anywhere  to  judge  the 
others.”  Dr.  Drago  then  compared  the  holder  of  government 
bonds  on  which  payments  had  been  suspended  to  the  share- 
holder in  a joint  stock  company  which  had  failed,  stating  that 
“the  only  difference  is  that  the  holder  of  government  bonds  is 
in  a more  favorable  position  than  the  stockholder,  for  the 
nation  does  not  disappear  and  becomes  solvent  again  sooner  or 


LIMITATION  OF  THE  EMPLOYMENT  OF  FOKCE  407 


later,  whereas  a company  that  has  failed  remains  stranded 
forever  without  hope  of  recovery.”  The  learned  Doctor  then 
asked: 

If,  as  is  evident,  private  financial  misfortunes  suffered  by 
the  subjects  of  a nation  in  a foreign  country  do  not  compromise 
the  progress,  existence,  or  happiness  of  the  public  at  large  to 
which  they  belong,  and  do  not  impose  on  the  latter  any  duty 
to  protect  them,  how  could  a war  be  justified  on  the  sole  ground 
that  these  subjects,  instead  of  dealing  with  private  parties,  had 
dealt  with  the  governments  themselves  in  the  hope  of  realizing 
a larger  and  surer  profit? 

To  these  arguments  Dr.  Drago  added  that  it  may  easily  happen 
that  when  certain  nations  execute  a blockade  or  naval  demon- 
stration for  the  protection  of  securities  held  by  their  subjects, 
a greater  part  of  the  securities  may,  owing  to  their  transfer  in 
the  meantime,  be  owned  by  citizens  of  other  nations,  and, 
indeed,  it  might  even  happen  that  bonds  held  by  subjects  of  a 
weak  nation  would  be  transferred  to  subjects  of  a great  Power 
in  order  to  have  them  collected  forcibly;  and,  finally,  that 
inextricable  confusion  would  result  should  the  bonds  be  held 
by  subjects  of  various  countries  which  intervened  separately 
and  presented  their  claims  in  a different  form  and  proposed 
different  settlements.  He  stated  that  it  is  impossible  to 
eliminate  the  risks  voluntarily  assumed  by  the  creditor  with  a 
view  to  realizing  considerable  gains,  and  quoted  Sir  Henry 
Campbell-Bannerman’s  statement  that  “big  dividends  gener- 
ally involve  big  risks”  and  “ if  the  whole  power  of  the  British 
Empire  were  placed  behind  the  capitalist,  the  latter’s  risk 
would  disappear  and  the  dividends  ought  to  diminish  in 
proportion.”  Dr.  Drago  continued,  that  war  cannot  be  justi- 
fied unless  there  is  a serious  offense  affecting  the  vital  interests, 
the  honor,  or  the  legitimate  development  of  the  aggrieved 
nation,  that  the  non-payment  of  the  coupons  of  a debt  to  the 
casual  holders  can  never  be  classed  among  these  causes, 
and  that  such  non-payment  ought  not,  therefore,  to  constitute 
a “casus  belli”  between  sovereign  and  therefore  equal  nations. 

Arbitration  is  always  welcome.  It  represents  a step  and  a 
considerable  one  toward  justice.  No  self-respecting  nation  can 


408 


THE  HAGUE  PEACE  CONFERENCES 


refuse  to  submit  to  it,  but  its  effects  will  necessarily  vary  in 
cases  of  denial  of  justice  and  cases  connected  with  loans.  A 
denial  of  justice,  ascertained  to  exist  by  arbitration,  constitutes 
a common  International  Law  offense  which  should  call  for 
reparation.  A denial  of  justice,  like  an  act  of  piracy,  is  a thing 
which  breaks  the  equilibrium  of  and  endangers  the  universal 
community,  and  for  this  very  reason  falls  within  the  immediate 
domain  of  international  repression  as  provided,  accepted,  and 
applied  by  the  general  consent  of  all  nations. 

However,  the  aspect  of  matters  changes  entirely  when  we 
consider  questions  of  loans. 

Adverting  to  the  provision  of  the  project  providing  for  the 
use  of  force  should  the  debtor  nation  refuse  to  execute  an  arbi- 
tral award,  Dr.  Drago  repeated  that  public  loans  were  acts  of 
sovereignty  and  ought  to  be  considered  as  such  before  and 
after  the  arbitration;  that  it  was  difficult  to  determine  in  each 
case  the  financial  situation  of  a debtor  country  without 
examining  into  the  very  depths  of  its  administration,  which 
is  itself  closely  connected  with  the  innermost  political  and 
social  organization  of  the  nation;  that  it  may  happen  that  the 
sentence  would  not  be  executed  in  consequence  of  some  error 
of  judgment  or  of  some  material  impossibility  arising  from 
unforeseen  and  variable  circumstances;  that  should  forcible 
recovery  be  resorted  to  in  such  case  the  problem  would  be 
removed  and  postponed,  but  would  be  far  from  being  solved, 
and  that  by  accepting  this  part  of  the  American  project 

. . . . we  should  be  taking  a great  step  back- 

wards, for  we  should  be  recognizing  war  as  a common  legal 
remedy,  we  should  be  establishing  one  more  case  of  legitimate 
warfare  which  would  be  really  inconsistent  with  a Peace  Con- 
ference whose  very  purpose  is  to  remove  or  at  least  diminish 
the  causes  of  war. 

The  employment  of  force  would  always  involve  a dispro- 
portion between  the  offense  and  the  punishment,  being  accom- 
panied by  the  same  dangers  to  local  sovereignties,  by  the  same 
inconveniences  and  injuries  to  neutral  nations,  and  affording 
the  same  excessive  protection  to  cosmopolitan  and  everchang- 
ing  bondholders. 

In  order  to  execute  the  award,  would  the  armies  and  fleets 
of  the  creditor  nations  be  set  in  motion,  would  troops  be  landed, 
territory  occupied,  customs  administered,  taxes  levied — ^in  a 


LIMITATION  OF  THE  EMPLOYMENT  OP  FORCE 


409 


word,  would  the  debtor  nation  be  subjected  to  the  control  and 
government  of  the  creditor  nation? 

It  is  certain  that  violent  methods  would  only  increase  the 
financial  difiiculties  of  the  debtor  and  perhaps  contribute  to  his 
total  ruin,  while,  on  the  other  hand,  the  certain  restriction  of 
the  credit  and  the  bad  opinion  entertained  of  the  nation  which 
did  not  meet  its  engagements  would  in  themselves  be  a sufficient 
punishment,  and  a moral  force  much  more  effective  than  physical 
force  in  favor  of  the  creditor. 

At  all  events  we  cannot  accept  on  this  subject  the  doctrine  of 
Lord  Palmerston,  which  our  distinguished  colleague  General 
Porter  thought  it  necessary  to  mention,  as  being  opposed  to 
financial  interventions  by  governments,  and  which  we  South 
Americans  consider  particularly  dangerous.  It  is  known  that 
Lord  Palmerston  proclaimed,  as  Lord  Salisbury  also  did  later, 
the  indisputable  right  to  intervene  in  order  to  collect  debts  of 
English  subjects,  but  he  subordinated  the  act  of  intervention 
itself  to  what  he  called  British  and  domestic  considerations, 
which  may  easily  become  political  ones  on  occasion.  Our 
colleague  quoted  to  us  the  text  of  part  of  the  celebrated  circular 
of  1848,  according  to  which  it  is  considered  good  English  policy 
not  to  encourage  subjects  who  invest  their  capital  in  foreign 
countries  by  placing  the  forces  of  the  Empire  at  their  disposal 
generally.  However,  in  the  same  dispatch  we  read  words 
which  clearly  explain  the  thoughts  of  the  Minister:  “If  the 
government  of  a nation  has  a right  to  demand  reparation  on 
behalf  of  any  one  of  its  subjects,  it  cannot  be  admitted  that  the 
right  to  such  reparation  is  diminished  solely  because  the  amount 
of  the  injury  sustained  is  greater  and  because  the  claim,  instead 
of  involving  comparatively  small  sums,  comprises  a great 
number  of  persons  with  considerable  amounts  of  capital.  It 
is  therefore  a question  which  the  British  Government  alone 
must  decide  whether  the  case  shall  or  not  be  treated  diplo- 
matically.” 

Dr.  Drago  then  referred  to  Lord  Palmerston’s  reply  to  Lord 
George  Bentinck  in  a debate  on  the  subject  of  the  unpaid 
Spanish  bonds  held  by  British  subjects,  in  the  House  of 
Commons  July  7,  1847,  in  which  Lord  Palmerston  admitted 
the  right  of  the  British  Government  to  wage  war  against  Spain 
for  the  recovery  of  the  debt,  but  denied  its  expediency  under 
the  then  existing  circumstances,  concluding  his  remarks  by 
stating: 

But  this  is  a question  of  expediency,  and  not  a question  of 
power;  therefore,  let  no  foreign  country  who  has  done  wrong  to 


410 


THE  HAGUE  PEACE  CONEERENCES 


British  subjects  deceive  itself  by  a false  impression  either  that 
the  British  nation  or  the  British  Parliament  will  forever  remain 
patient  under  the  wrong;  or  that,  if  called  upon  to  enforce  the 
rights  of  the  people  of  England,  the  government  of  England 
will  not  have  ample  power  and  means  at  its  command  to  obtain 
justice  for  them.  ^ 

Dr.  Drago  concluded  his  address  with  the  following  para- 
graphs : 

Far  be  it  from  my  mind  to  suppose  that  any  of  the  Powers 
represented  here  entertains  any  scheme  of  conquest  and  impe- 
rialistic expansion  against  the  weaker  nations  of  America 
which  have  no  other  defense  than  right  and  immutable  justice. 

However,  nature  has  been  lavish  with  our  countries,  the  mild 
climate  and  fertile  soil  of  which  are  favorable  to  all  sorts  of 
products  and  crops.  Being  of  vast  extent  and  having  but  a 
small  and  widely  scattered  population,  they  have  been  in  the 
past  and  may  still  be  the  object  of  cupidity.  It  may  then  hap- 
pen, not  today,  not  tomorrow,  but  in  a more  or  less  remote 
future,  that  there  will  obtain  in  Europe  an  irresistible  current 
of  opinion  capable  of  forcing  the  Governments  to  assume  an 
aggressive  attitude  contrary  to  their  intentions  of  the  present 
time. 

And  it  cannot  be  denied  that  the  permanent  control  and 
subjection  of  peoples  could  not  be  brought  about  more  easily, 
in  this  hypothetical  case,  than  through  the  financialinterventions 
which  we  are  trying  to  prevent  for  this  very  reason. 

Mr.  President,  at  a memorable  time  the  Argentine  Republic 
proclaimed  the  doctrine,  which  excludes  from  the  American 
Continent  military  operations  and  the  occupation  of  territory 
having  Government  loans  as  their  causes. 

Although  based  on  very  serious  and  fundamental  considera- 
tions, the  principle  here  involved  is  one  of  policy  and  of  mili- 
tant policy,  which  cannot  be  and  which  we  shall  not  see  dis- 
cussed or  voted  on  in  this  assembly. 

I announce  it,  nevertheless,  in  order  to  reserve  it  expressly 
and  to  declare,  in  the  name  of  the  Argentine  Delegation,  that 
the  latter  intends  to  maintain  it  as  the  political  doctrine  of  its 
country  with  all  the  energy  manifested  in  the  dispatch  sent 
on  December  29,  1902,  by  our  Government  to  its  Representative 
at  Washington  on  the  occasion  of  the  Venezuelan  episodes. 

It  is  with  this  reservation,  which  will  be  duly  recorded  and 
which  relates  to  the  public  or  national  debt  arising  from  Gov- 
ernment loans,  that  the  Argentine  Delegation  will  accept  arbi- 


1 Moore’s  International  Law  Digest,  Vol.  VI,  p.  286. 


LIMITATION  OF  THE  EMPLOYMENT  OF  FORCE  411 


tration,  thus  doing  fresh  homage  to  a principle  which  its  country 
has  often  endorsed.* 

The  other  important  address  on  the  subject  was  delivered  by 
M.  Ruy  Barbosa,  and  it  is  one  of  his  ablest  and  most  masterly 
efforts. 

M.  Barbosa  stated  that  he  would  be  only  too  happy  to  see  war 
abolished,  but  that,  if  war  were  permitted  at  all,  he  did  not  see 
any  legal  distinction  in  the  nature  of  things  between  national 
loans  and  debts  from  ordinary  contracts  which  would  forbid  war 
in  the  one  case  and  permit  it  in  the  other.  A contract  is  a contract 
whether  it  be  evidenced  by  a bond  or  by  an  ordinary  instru- 
ment. The  distinction  drawn  between  state  loans  and  private 
contracts  refusing  force  in  the  one  and  allowing  it  in  the  other 
is  contrary  to  legal  reason.  The  state  loan  is  a legal  act,  not 
merely  an  act  of  confidence,  but  if  it  be  considered  an  act  of  con- 
fidence, without  creating  an  obligation  which  may  be  enforced, 
is  it  to  be  believed  that  creditors  deprived  of  the  means  of  collect- 
ing their  loans  will  continue  to  advance  them?  It  is  admitted, 
continued  M.  Barbosa,  that  the  States  are  bound  to  pay  their 
debts,  but  that  in  the  matter  of  state  loans  the  debtors  retain  the 
right  to  control  both  the  manner  and  the  time  of  payment, 
and  if  that  be  so  the  debtor  may  remit  the  payment  to  such  a 
future  date  or  may  adjourn  the  payment  so  often  that  the  right 
of  creditors  will  be  entirely  lost.  For  legally  speaking  there 
can  be  no  doubt  that  if  I have  the  right  of  paying  only  when 
I care  to  pay,  I do  not  go  beyond  my  right  in  adjourning  for- 
ever the  date  of  payment. 

Sovereignty  is  not  really  involved,  it  is  rather  the  abuse  of 
sovereignty,  which,  if  applied  within  the  State,  would  destroy 
legal  relations  just  as  it  would  destroy  them  if  admitted  in 
international  relations. 

“Neither  theory  nor  practice  has  ever  admitted,”  he  said, 
“ this  view,  which,  is  in  our  opinion  incorrect,  of  the  position  of 
the  State  in  the  matter  of  loans  which  it  contracts.  In  our 
opinion  the  State  in  borrowing  does  not  exercise  its  sovereignty, 

' La  Deuxieme  Conference  Internationale  de  la  Paix,  1907,  Vol.II,  First 
Commission,  First  Sub-Commission,  6th  Session,  July  18,  1908. 


412 


THE  HAGUE  PEACE  CONFERENCES 


but  an  act  of  private  law  as  is  the  case  in  so  many  other  con- 
tracts in  which  its  personality  is  divided,  that  is  to  say,  in  which 
it  leaves  its  political  sphere  to  undertake  acts  of  a civil  char- 
acter.” 

M.  Barbosa  did  not  see  that  the  American  proposition  tended 
to  legitimize  war,  for  the  admission  that  war  may  result  is 
simply  a recognition  of  facts  as  they  actually  are.  The  Ameri- 
can proposition,  had  it  been  less  sincere,  might  have  omitted  the 
reference  to  the  use  of  force  in  the  case  of  a refusal  to  arbitrate, 
but  the  omission  would  merely  have  meant  that  the  possibility 
of  war  should  be  read  into  the  text,  though  not  stated. 

In  concluding  his  address,  M.  Barbosa  stated  that  the  Brazil- 
ian constitution  forbade  wars  of  conquest,  and  he  proposed  to 
amend  the  American  proposition  in  the  following  manner  so 
as  to  prevent  this  class  of  wars : 

The  Signatory  Powers  undertake  not  to  alter  by  means  of 
war  the  actual  frontiers  of  their  territory  at  the  expense  of  any 
other  of  these  powers,  unless  arbitration  has  been  refused  after 
being  proffered  by  the  power  which  desires  the  alteration,  or 
an  arbitral  award  has  been  violated  by  the  other.  If  one  of 
the  Signatory  Powers  should  neglect  this  engagement,  the  alien- 
ation of  territory  imposed  by  the  force  of  arms  shall  have  no 
juridical  value. ^ 

The  addresses  of  Messrs.  Drago  and  Barbosa  showed  that 
Latin-America  was  not  of  one  mind.  Dr.  Drago’s  distinc- 
tion between  state  loans  and  private  contracts  was  widely- 
shared  by  the  American  delegations,  as  was  also  his  view  that 
the  duty  to  arbitrate  did  not  arise  before  the  local  remedy  has 
been  exhausted.  It  may  be  interesting  to  note  that  Venezuela 
was  willing  to  accept  the  benefit  of  the  renunciation  of  force 
but  was  unwilling  to  bind  itself  to  arbitrate.  Its  delegation 
therefore  voted  in  favor  of  the  first  article  and  against  the 
second,  and,  as  the  proposition  was  adopted  as  a whole  against 
Venezuela's  request  that  each  paragraph  be  voted  separately. 


‘ La  Deuxieme  Conference  Internationale  de  la  Paix,  1907,  Vol.  II,  First 
Commission  First  Sub-Commission,  7th  Session,  July  23,  1907.  See  also, 
Actes  et  Discours  de  M.  Ruy  Barbosa  (1907),  pp.  60-79. 


LIMITATION  OF  THE  EMPLOYMENT  OF  FORCE  413 

Venezuela  abstained  from  the  final  vote  and  refused  to  sign 
the  convention. 

The  larger  States  of  Europe,  however,  such  as  Great  Britain, 
Germany,  France,  Austria-Hungary,  accepted  the  proposition 
without  reservation  of  any  kind.  Italy  and  Spain  felt  that 
the  phraseology  was  neither  clear  nor  happy,  and,  while  favor- 
able to  the  principle,  reserved  their  final  vote,  as  did  Japan. 
Russia  seconded  the  American  proposition  but  limited  its 
action  solely  to  obligations  arising  in  the  future.^  The  first 
delegate  of  Sweden,  M.  de  Hammarskjold,  a man  of  remarkable 
ability,  called  attention  to  the  fact  that  the  American  proposi- 
tion as  worded  did  not  merely  permit  the  use  of  force  but 
justified  it,  thereby  giving  a direct  sanction  to  war  under- 
taken in  pursuance  of  the  recognition  of  war  contained  in  an 
article  meant  to  limit  war. 

“I  cannot,”  he  said,  “support  by  an  affirmative  vote  the 
American  proposition  concerning  the  limitation  of  the  employ- 
ment of  force  in  the  collection  of  ordinary  public  debts  having 
their  origin  in  contracts.  This  proposition  as  formulated  seems 
to  be  an  indirect  sanction  to  the  employment  of  force  in  all  cases 
not  expressly  covered.  Even  a State  absolutely  above  all  sus- 
picion in  fulfilling  its  obligations  cannot  well  desire  that  armed 
execution  is  partially  sanctioned,  thus  leading  to  misunder- 
standing and  abuse.”^ 

It  will  be  seen  later  that  the  revised  form  of  the  American 
proposition  presented  to  the  Committee  of  Examination  and 
adopted  by  the  Conference  meets  the  objection  of  the  distin- 
guished Swedish  jurist  and  statesman;  for  in  the  first  para- 
graph the  use  of  force  is  specifically  renounced,  and  in  a sub- 
sequent paragraph  the  debtor  State,  refusing  either  to  arbitrate 
or  to  comply  with  the  requirements  of  arbitrations,  merely 
loses  the  benefit  of  the  renunciation  mentioned  in  the  first 
paragraph.  Force  is  neither  directly  nor  indirectly  sanctioned : 


* La  Deuxieme  Conference  Internationale  de  la  Paix,  1907,  Vol.  II,  First 
Commission,  First  Sub-Commission,  5th  Session,  July  16,  1907. 

’ Ibid.,  8th  Session,  July  27,  1907. 


414 


THE  HAGUE  PEACE  CONFEKENCES 


the  law  on  the  subject  is  thus  untouched,  and  events  are  left 
to  take  their  course  without  reference  to  the  convention. 

It  will  be  noted,  indeed  it  has  previously  been  pointed  out, 
that  the  American  proposition  bound  the  Powers  to  arbitrate 
controversies  arising  from  contract  indebtedness  without 
reserve.  This  extreme  form  of  compulsory  arbitration  did 
not  pass  unnoticed,  for  Roumania  and  Belgium  called  partic- 
ular attention  to  it  and  abstained  from  voting  because  the 
reserves  were  not  included  in  the  American  formula. ‘ Switzer- 
land opposed  the  American  proposition  and  refused  to  vote 
for  it,  because  foreigners  can  sue  Switzerland  in  Swiss  courts 
upon  an  equality  with  natives,  and  because  in  the  second  place 
Switzerland  was  unwilling  to  allow  the  judgments  of  its  courts 
to  be  the  subject  of  arbitration.^  Another  cause  of  opposition 
was  the  fact  that  the  proposition,  however  general  in  terms, 
was  local  and  limited  in  nature  and  extent,  to  the  American 
continent.  M.  Beldiman  therefore  proposed  that  the  proposi- 
tion, if  adopted,  should  not  be  included  in  the  convention 
for  the  peaceful  settlement  of  international  disputes,  but  that 
it  should  form  a separate  agreement  between  the  interested 
powers  without  reference  to  this  convention.®  As  this  request 
of  Roumania  coincided  with  the  desire  of  the  American  dele- 
gation, the  subject  of  contract  debts  is  regulated  in  a separate 
and  distinct  convention,  although  in  the  matter  of  arbitral 
procedure  it  necessarily  refers  to  the  convention  for  the  peace- 
ful settlement  of  international  disputes. 

* See  address  of  M.  Beldiman  (Roximania),  La  Deuxieme  Conference 
Internationale  de  la  Paix,  1907,  Vol.  II,  First  Commission,  First  Sub-Com- 
mission, 8th  Session,  July  27,  1907. 

For  the  declaration  of  Baron  Guillaume  (Belgium)  to  the  same  effect, 
see  Committee  of  Examination  A,  15th  Session,  September  3, 1907;  Actes 
et  Documents,  Vol.  I,  p.  560. 

^ La  Deuxieme  Conference  Internationale  de  la  Paix,  1907,  Vol.  II,  First 
Commission,  First  Sub-Commission,  6th  Session,  July  18,  1907;  Plenary 
Session,  First  Commission,  8th  Session,  October  9,  1907;  Actes  et  Doc- 
uments, Vol.  I,  p.  337. 

^ For  an  elaborate  exposition  of  M.  Beldiman ’s  reasons  for  this  proposal, 
see  address  referred  to  in  note  1,  supra. 


LIMITATION  OF  THE  EMPLOYMENT  OF  FOKCE 


415 


4.  The  Convention  on  Contract  Debts  and  its 
Importance 

At  the  end  of  the  general  discussion  in  the  First  Commission 
(July  27,  1907,)  the  American  proposition  was  approved  by 
36  votes,  none  against,  and  8 abstentions  (Belgium,  Greece, 
Luxemburg,  Roumania,  Sweden,  Switzerland,  Turkey  and 
Venezuela.)  It  was  thereupon  referred  to  the  Committee  of 
Examination  for  further  discussion  and  the  preparation  of  a 
definitive  text  which  might  more  nearly  meet  the  desires  of 
the  delegations.  The  discussion  in  the  Committee  of  Examina- 
tion was  very  brief.  A revised  draft  was  presented  by  the 
American  delegation,  the  same  in  substance,  though  slightly 
different  in  form.  As  this  was  the  text  voted  by  the  Confer- 
ence without  amendment  or  change,  I quote  the  first  two 
paragraphs  of  the  final  version: 

The  Contracting  Powers  agree  not  to  have  recourse  to  armed 
force  for  the  recovery  of  contract  debts  claimed  from  the  Gov- 
ernment of  one  country  by  the  Government  of  another  country 
as  being  due  to  its  nationals. 

This  undertaking  is,  however,  not  applicable  when  the 
debtor  State  refuses  or  neglects  to  reply  to  an  offer  of  arbitra- 
tion, or,  after  accepting  the  offer,  prevents  any  compromis 
from  being  agreed  on,  or,  after  the  arbitration,  fails  to  submit 
to  the  award. 

The  difference  between  this  final  version  and  the  previous 
drafts  is  seen  to  consist  solely  in  the  fact  that  the  renuncia- 
tion of  force  is  complete  in  the  first  paragraph,  and  the  right 
to  use  force  is  not  stated  in  express  terms  if  the  debtor  should 
refuse  arbitration.  The  debtor  by  refusing  arbitration  loses 
the  benefit  of  the  renunciation.  The  law  is  thus  left  in  its 
present  state  without  comment  or  explanation.  M.  de  Mar- 
tens asked  if  it  was  the  intention  of  the  framers  of  the  project 
to  limit  its  application  to  the  ease  in  which  citizens  or  nationals 
of  a State,  the  creditors  of  another  State,  should  address  their 
government  in  order  to  recover  the  amount  of  the  debt  due 
them. 


416 


THE  HAGUE  PEACE  CONFERENCES 


Is  it  clearly  understood  that  it  depends  absolutely  upon  the 
government  in  question  to  intervene  in  the  conflict  between 
its  nationals  and  a stranger  State  and  even  in  a case  of  necessity 
to  replace  them  in  the  controversy? 

To  which  question  General  Porter,  on  the  behalf  of  the 
United  States,  answered  in  the  affirmative.  ‘ In  reply  to  the  criti- 
cism of  Messrs.  Drago  and  Milovanovitch  (Servia)  that  the 
expression  “contractual  debts”  was  too  vague.  General 
Porter  stated  adroitly  that  it  was  not  within  his  province 
to  enter  into  definitions  which  it  would  be  almost  impossible 
to  formulate.  This  closed  the  discussion,  at  the  termination 
of  which  M.  Bourgeois  declared  that  the  French  delegation 
would  vote  for  the  American  proposition  because  “we  see 
in  it  a case  of  compulsory  arbitration,”  to  which  Baron 
Marschall,  who  had  opposed  the  convention  for  compulsory 
arbitration,  replied  that  he  did  not  share  this  view.*  The  com- 
mittee thereupon  adopted  the  American  proposition  in  its 
entirety  without  modification  or  indeed  without  official 
explanation  or  definition  of  the  terms  employed.®  In  com- 
mission, the  proposition  was  discussed  at  considerable  length^ 
but  was  not  seriously  opposed,  and  at  the  9th  plenary  session 
of  the  Conference,  held  on  October  16,  1907,  the  Conference 
adopted  the  convention  for  the  limitation  of  force  in  the  collec- 
tion of  contract  debts  by  a vote  of  39  in  favor  to  5 absten- 
tions (Belgium,  Roumania,  Sweden,  Switzerland,  and  Vene- 


* La  Deuxieme  Conference  Internationale  de  la  Paix,  1907,  Actes  et  Docu- 
ments, Vol.  I,  p.  559. 

“ Le  President  (M.  Bourgeois)  declare  que  la  D614gation  fran^aise  don- 
nera  a la  proposition  un  vote  favorable — et  it  ajoute:  surtout  parce  que 
nous  y voyons  un  cas  d’arbitrage  obligatoire. 

Le  Baron  de  Marschall  ne  partage  pas  cette  appreciation. — Extract 
from  Proc4s-verbal,  Committee  of  Examination  A,  15th  Session,  September 
3,  1907. 

^ The  vote  was  12  for,  1 against  (Switzerland),  Committee  of  Examina- 
tion A,  15th  Session,  September  3,  1907. 

* For  the  discussion,  see  Plenary  Session,  First  Commission,  First  Sub- 
Commission,  8th  Session,  October  9,  1907. 

The  vote  in  Commission  was  37  for,  none  against,  and  6 abstentions  (Bel- 
gium, Greece,  Luxembourg,  Roumania,  Sweden,  Switzerland). — Ibid. 


LIMITATION  OF  THE  EMPLOYMENT  OF  FOKCE 


417 


zuela)  .1  There  were,  however,  various  objections  in  the  form  of 
reservations.* 

It  may  be  interesting  to  note  the  reservations  of  Argentine 
and  Peru  coming  as  each  does  from  a distinguished  Argentine 
publicist  M.  Drago  and  the  late  M.  Calvo.  In  announcing 
the  favorable  vote  of  Argentine,  Dr.  Drago  made  on  its  behalf 
the  following  reserve: 

First,  so  far  as  concerns  debts  arising  from  ordinary  con- 
tracts between  the  citizen  or  subject  of  a nation  and  a foreign 
government  resort  shall  only  be  had  to  arbitration  in  the  specific 
caseof  adenialof  justiceby  the  local  jurisdictions  of  the  contract- 
ing country  which  must  first  be  exhausted.  Second,  public  loans 
with  bond  issues  constituting  the  national  debt  cannot  in  any 
case  give  rise  to  military  aggression  nor  to  the  occupation  of  the 
soil  of  American  nations. 

The  Peruvian  reservation  provided: 

That  the  principles  adopted  in  this  proposition  cannot  be 
applied  to  claims  or  differences  arising  from  contracts  between 
the  government  of  one  country  and  foreign  subjects,  when  it 
has  been  expressly  stipulated  in  these  contracts  that  the  claims 
or  differences  must  be  submitted  to  the  fjudges  and  tribunals 
of  the  contracting  country. 

The  convention  as  voted  is  remarkably  brief,  simple  and 
clear  notwithstanding  the  fact  that  the  expression  '‘contract 
debts”  is,  as  was  frequently  said,  vague  and  indefinite.  The 
American  delegation  did  not  attempt  to  define  and  the  text 
was  voted  as  framed  without  an  official  interpretation.  Had 
the  term  “contract  debts”  not  seemed  sufficiently  broad  to 
include  bond  issues.  Dr.  Drago  would  not  have  interposed  a 
formal  reserve,  and  the  fact  that  he  did  interpose  such  a reserve 
leads  to  the  conclusion  that  the  term  does  necessarily  include 
bonds  as  a form  of  contract.  General  Porter,  who  executed 
his  trust  with  great  tact  and  skill,  refused  to  define  the  terms, 

' La  Deuxieme  Conference  Internationale  de  la  Paix,  Actes  et  Docu- 
ments, Vol.  I,  pp.  336-338. 

* These  sufficiently  appear  in  the  reservation  attached  to  the  table  of 
signatures  issued  by  the  Dutch  Government  and  will  be  found  in  Vol. 
II,  pp.  632-534. 


418 


THE  HAGUE  PEACE  CONFERENCES 


stating  explicitly,  although  not  so  reported  in  the  minutes 
of  the  Conference,  that  it  was  dangerous  to  define  an  expres- 
sion which  would  undoubtedly  be  the  subject  of  interpreta- 
tion by  courts  of  arbitration.  The  extent  of  the  obligation  to 
arbitrate  is  left  to  future  arbitration.  But  it  may  be  said  that 
the  broader  the  meaning  of  contract  debts,  the  greater  will 
be  the  benefit  conferred  upon  the  debtor  State;  for,  if  state 
loans  be  included  in  contract  indebtedness,  it  necessarily 
follows  that  the  creditor  cannot  proceed  to  the  use  of  force  to 
collect  these  claims  but  is  obliged  to  propose  their  submission 
to  arbitration. 

The  objection  made  against  the  convention  that  force 
may  be  used  if  the  debtor  does  not  arbitrate  is  entitled  to 
little  consideration;  because  in  the  actual  state  of  affairs  a 
nation  may  go  to  war  with  or  without  cause,  and,  in  the  absence 
of  this  convention,  could  set  its  army  and  navy  in  motion  to 
collect  claims  arising  out  of  contract.  The  creditor  specifi- 
cally renounces  his  right  to  resort  to  arms — an  incalculable 
benefit  to  the  debtor,  who  may  always  prevent  the  use  of 
force  by  acting  in  good  faith.  An  agreement  to  arbitrate, 
actual  arbitration,  and  the  performance  of  the  arbitral  award 
preclude  force.  It  may  be  said  that  the  threat  of  war  will 
force  arbitration,  but  nations  as  well  as  individuals  should  be 
bound  to  meet  their  obligations  and  every  reason  which  forces 
an  individual  into  court  should  lead  a nation  to  arbitrate  its 
liability. 

It  will  be  noted  that  the  second  paragraph  of  the  convention 
prescribes  the  procedure  laid  down  in  part  4,  chapter  3,  of  the 
convention  for  the  pacific  settlement  of  international  disputes. 
A reference  to  Article  53  of  the  convention  shows  that  the 
permanent  court  is  competent  to  settle  the  compromis  upon 
the  request  of  one  of  the  parties  in  the  case  of 

I.  A dispute  covered  by  a general  treaty  of  Arbitration 
concluded  or  renewed  after  the  present  Convention  has  come 
into  force,  and  providing  for  a compromis  in  all  disputes  and 
not  either  explicitly  or  implicitly  excluding  the  settlement  of  the 
compromis  from  the  competence  of  the  Court.  Recourse  can- 


LIMITATION  OF  THE  EMPLOYMENT  OF  FORCE 


419 


not,  however,  be  had  to  the  court  if  the  other  party  declares 
that  in  its  opinion  the  dispute  does  not  belong  to  the  category 
of  disputes  which  can  be  submitted  to  compulsory  arbitration, 
unless  the  Treaty  of  Arbitration  confers  upon  the  Arbitration 
Tribunal  the  power  of  deciding  this  prehminary  question. 

2.  A dispute  arising  from  contract  debts  claimed  from  one 
Power  by  another  Power  as  due  to  its  nationals,  and  for  the 
settlement  of  which  the  offer  of  arbitration  has  been  accepted. 
This  arrangement  is  not  applicable  if  acceptance  is  subject  to 
the  condition  that  the  compromis  should  be  settled  in  some 
other  way. 

This  may  seem  to  force  arbitration  upon  the  debtor  and 
deprive  him  of  the  power  to  settle  or  agree  to  the  compromis. 
This  is,  however,  erroneous  because  the  article  presupposes 
the  acceptance  of  the  offer  of  arbitration  and  then  provides 
a means,  namely,  the  Permanent  Court,  by  which  the  com- 
promise may  be  framed  if  the  parties  in  controversy  have  been 
unable  to  agree  upon  the  terms  of  submission.  That  this 
provision  is  intended  to  aid  the  parties,  not  to  deprive  either, 
especially  the  debtor,  of  his  right  to  negotiate  the  compromis, 
is  evident  from  the  language  of  the  article,  because 

this  arrangement  is  not  applicable  if  acceptance  is  subject  to  the 
condition  that  the  compromis  should  be  settled  in  some  other 
way. 

Turning  now  to  the  final  paragraph  of  the  second  article 
of  the  convention,  it  appears  that  the  award  shall  determine 
the  validity  of  the  claim,  the  amount  of  the  debt,  and  the 
time  and  mode  of  payment,  that  is  to  say,  arbiters  are 
empowered  to  examine  as  trained  judges  the  circumstances 
of  the  claim  in  order  to  establish  its  validity  or  to  reject  it 
as  unfounded.  They  are  likewise  competent  to  fix  the 
amount  of  the  debt,  that  is  to  say,  supposing  that  the  claim 
be  legal,  to  determine  the  amoimt  which  the  debtor  should  pay, 
in  view  of  all  the  circumstances,  and  finally,  lest  an  immediate 
payment  should  bear  harshly  upon  the  debtor,  the  arbiters 
have  the  right  to  fix  the  time  and  the  mode  of  payment.  In 
other  words,  the  arbiters  are  empowered  not  merely  to  reject 
an  unfounded  claim  or  to  reduce  the  amount  of  the  claim. 


420 


THE  HAGUE  PEACE  CONFERENCES 


but,  acting  as  a court  of  equity  and  in  view  of  all  the  circum- 
stances of  the  case,  to  fix  the  time  and  the  mode  of  payment 
in  such  form  and  manner  as  to  meet  the  demands  of  justice 
without  imposing  the  hardship  of  immediate  payment  upon 
the  debtor.  Force  is  not  merely  displaced  by  law,  but  law 
is  tempered  by  equity. 

It  will  be  evident,  therefore,  that  the  proposition  of  the 
United  States — commonly  known  at  the  Conference  as  the 
Porter  proposition — differs  from  the  thesis  of  Dr.  Drago  in 
that  its  scope  is  at  once  broader  and  narrower;  that  its  pur- 
pose is  to  secure  the  renunciation  of  force  whether  that  force 
would  be  used  to  collect  a debt  or  to  occupy,  as  a means  of 
settlement,  the  territory  of  the  debtor;  that  it  is  legal  in  that 
questions  of  law  and  fact  are  to  be  subjected  to  arbitration. 
The  Drago  Doctrine  is,  on  the  other  hand,  political  because  in 
ultimate  analysis  it  proclaims  the  principle  that  America  is 
not  subject  to  occupation  or  annexation  from  claims  arising 
out  of  public  indebtedness.  The  Drago  Doctrine  is  there- 
fore a program,  a manifesto.  But  the  American  proposition, 
without  mentioning  the  subject  of  occupation  or  annexation, 
accomplishes  indirectly — by  indirection  finds  direction  out — 
the  purpose  uppermost  in  Dr.  Drago’s  mind;  for  if  force  is 
to  be  renounced  in  all  contract  claims — and  it  is  to  be  hoped 
that  public  debts  fall  within  the  definition — it  follows  that  no 
portion  of  this  western  hemisphere  is  to  be  trampled  under 
foot  and  bruised  by  an  armed  and  alien  heel. 

In  letter  the  American  proposition  is  narrower,  because  force 
is  not  expressly  prohibited  for  this  purpose:  in  spirit  it  is 
coextensive.  The  Monroe  Doctrine  is  a general  notice  to 
keep  hands  off  the  American  continent ; the  Drago  Doctrine 
is  a special  warning.  The  two  doctrines  are  solemn  declara- 
tion of  public  policy  and  as  such  they  are  considered  by  publi- 
cists. The  Monroe  Doctrine  is  simply  an  American  policy 
and  the  Drago  Doctrine,  however  emphatic  its  language, 
is  nothing  but  a unilateral,  that  is,  a one-sided  statement  which 
does  not  create  an  obligation.  The  convention  for  the  limi- 
tation of  force  in  the  collection  of  contract  debts  is  a contract, 


LIMITATION  OF  THE  EMPLOYMENT  OF  FORCE 


421 


entered  into  by  the  nations  of  the  world,  and  at  one  and  the 
same  time,  a solemn  and  formal  recognition  of  the  Monroe 
Doctrine.  Through  Dr.  Drago,  the  Monroe  Doctrine  has  made 
its  formal  entr}'-  into  public  law  as  distinct  from  national 
policy. 

On  August  17,  1906,  Dr.  Luis  M.  Drago  standing  face  to 
face  with  Mr.  Root  in  Buenos  Aires,  stated  that 

It  is  consequently  our  sacred  duty  to  preserve  the  integrity 
of  America,  material  and  moral,  against  the  menaces  and  arti- 
fices, very  real  and  effective,  that  unfortunately  surround  it. 
It  is  not  long  since  one  of  the  most  eminent  of  living  jurisconsults 
of  Great  Britain  denounced  the  possibility  of  the  danger.  “ The 
enemies  of  light  and  freedom,”  he  said,  “are  neither  dead  nor 
sleeping;  they  are  vigilant,  active,  militant  and  astute.”  And 
it  was  in  obedience  to  that  sentiment  of  common  defense  that 
in  a critical  moment  the  Argentine  Republic  proclaimed  the 
impropriety  of  the  forcible  collection  of  public  debts  by  Euro- 
pean nations,  not  as  an  abstract  principle  of  academic  value 
or  as  a legal  rule  of  universal  application  outside  of  this  con- 
tinent (which  it  is  not  incumbent  on  us  to  maintain),  but  as  a 
principle  of  American  diplomacy  which,  whilst  being  founded 
on  equity  and  justice,  has  for  its  exclusive  object  to  spare  the 
peoples  of  this  continent  the  calamities  of  conquest  disguised 
under  the  mask  of  financial  interventions,  in  the  same  way  as 
the  traditional  policy  of  the  United  States,  without  accentuat- 
ing superiority  or  seeking  preponderance,  condemned  the  op- 
pression of  the  nations  of  this  part  of  the  world  and  the  control 
of  their  destinies  by  the  great  Powers  of  Europe.  The  dreams 
and  utopias  of  today  are  the  facts  and  commonplaces  of  to- 
morrow, and  the  principle  proclaimed  must  sooner  or  later 
prevail.^  , 

In  reply  our  Secretary  of  State  linked  the  Drago  Doctrine 
and  the  Monroe  Doctrine  in  the  following  measured  language : 

Upon  the  two  subjects  of  special  international  interest  to 
which  you  have  alluded,  I am  glad  to  be  able  to  declare  myself 
in  hearty  and  unreserved  sympathy  with  you.  The  United 
States  of  America  has  never  deemed  it  to  be  suitable  that  she 
should  use  her  Army  and  Navy  for  the  collection  of  ordinary 
contract  debts  of  foreign  Governments  to  her  citizens.  For 
more  than  a century  the  State  Department,  the  Department  of 
Foreign  Relations  of  the  United  States  of  America,  has  refused 

* Mr.  Root’s  Speeches  in  South  America  (1906),  pp.  153-154. 


422 


THE  HAGUE  PEACE  CONFERENCES 


to  take  such  action,  and  that  has  become  the  settled  policy  of 
our  country.  We  deem  it  to  be  inconsistent  with  that  respect 
for  the  sovereignty  of  weaker  powers  which  is  essential  to  their 
protection  against  the  aggression  of  the  strong.  We  deem  the 
use  of  force  for  the  collection  of  ordinary  contract  debts  to  be 
an  invitation  to  abuses  in  their  necessary  results  far  worse,  far 
more  baneful  to  humanity  than  that  the  debts  contracted  by 
any  nation  should  go  unpaid.  We  consider  that  the  use  of  the 
army  and  navy  of  a great  power  to  compel  a weaker  power  to 
answer  to  a contract  with  a private  individual  is  both  an  invita- 
tion to  speculation  upon  the  necessities  of  weak  and  struggling 
countries  and  an  infringement  upon  the  sovereignty  of  those 
countries,  and  we  are  now,  as  we  always  have  been,  opposed 
to  it;  and  we  believe  that,  perhaps  not  today  nor  tomorrow,  but 
through  the  slow  and  certain  process  of  the  future,  the  world 
will  come  to  the  same  opinion.  It  is  with  special  gratification 
that  I have  heard  from  your  lips  so  just  an  estimate  of  the 
character  of  that  traditional  policy  of  the  United  States  which 
bears  the  name  of  President  Monroe.  When  you  say  that  it 
was  (without  accentuating  superiority  or  seeking  preponder- 
ance) Monroe’s  declaration  that  condemned  the  oppression  of 
the  nations  of  this  part  of  the  world  and  the  control  of  their 
destinies  by  the  great  Powers  of  Europe,  you  speak  the  exact 
historical  truth.  You  do  but  simple  justice  to  the  purposes 
and  the  sentiments  of  Monroe  and  his  compatriots  and  to  the 
country  of  Monroe  at  every  hour  from  that  time  to  this.‘ 


' Mr.  Root’s  Speeches  in  South  America,  pp.  157-159. 


CHAPTER  IX 


THE  PROPOSED  COURT  OF  ARBITRAL  JUSTICE  > 

1.  The  Permanent  Court  of  1899  and  the  Proposed 
Court  of  1907 

Before  undertaking  the  systematic  exposition  and  analysis 
of  the  Project  for  the  establishment  of  the  Court  of  Arbitral 
Justice,  voted  by  the  Committee  of  Examination  B and  referred 
to  the  First  Commission,  it  may  be  advisable  to  devote  a 
few  paragraphs  by  way  of  introduction,  to  the  Permanent 
Court  of  Arbitration,  created  in  1899,  by  the  First  Conference, 
alongside  of  which  it  is  proposed  to  establish  a Court  of  Arbi- 
tral Justice,  in  order  to  supplement  the  existing  Court. 

It  will  be  remembered  that  Article  16  of  the  Convention  of 
1899  provided  that: 

In  questions  of  a legal  nature,  and  especially  in  the  interpre- 
tation or  application  of  International  Conventions,  arbitration 
is  recognized  by  the  Signatory  Powers  as  the  most  effective,  and 
at  the  same  time  the  most  equitable,  means  of  settling  disputes 
which  diplomacy  has  failed  to  settle. 

That  this  solemn  declaration  of  a broad  and  beneficent  prin- 
ciple might  not  remain  a dead  letter,  the  Conference  under- 
took to  create  a court  in  which  international  conflicts  might 
be  arbitrated.  Article  20  provides  as  follows: 

With  the  object  of  facilitating  an  immediate  recourse  to 
arbitration  for  international  differences,  which  it  has  not  been 
possible  to  settle  by  diplomacy,  the  Signatory  Powers  under- 

* For  full  details  of  the  proposed  Court  of  Arbitral  Justice  and  the 
proceedings  had  in  the  First  Commission,  Committee  of  Examination  B, 
and  in  the  plenary  session  of  the  Conference,  see  the  elaborate  report 
printed  in  La  Deuxi^me  Conference  Internationale  de  la  Paix,  1907, 
Actes  et  Documents,  Vol.  I,  pp.  347-398;  332-335. 

423 


424 


THE  HAGUE  PEACE  CONFERENCES 


take  to  organize  a Permanent  Court  of  Arbitration,  accessible 
at  all  times  and  operating,  unless  otherwise  stipulated  by  the 
parties,  in  accordance  with  the  Rules  of  Procedure  inserted  in 
the  present  Convention. 

The  framers  of  the  Convention  had  in  mind  the  arbitration 
of  international  conflicts,  and,  as  it  is  incident  to  arbitration 
that  the  parties  litigant  chose  their  own  judges, ‘ Article  17 
defined  and  provided  that : 

The  Arbitration  Convention  is  concluded  for  questions  already 
existing  or  for  questions  which  may  arise  eventually. 

It  may  embrace  any  dispute  or  only  disputes  of  a certain 
category. 

If  Articles  16, 17  and  20  be  compared  and  analyzed  it  is  evi- 
dent that  questions  of  a judicial  nature  were  deemed  pecu- 
liarly susceptible  of  arbitration,  and  by  the  establishment  of  a 
Permanent  Court  of  Arbitration  it  was  hoped  that  these  ques- 
tions would  be  frequently  arbitrated  and  decided  on  the  basis 
of  respect  for  law.  So  far  it  would  seem  that  the  foundations 
were  laid  for  a court  in  the  juristic  sense  of  the  word,  but 
arbiters,  the  choice  of  the  parties  litigant,  instead  of  judges 
were  to  be  appointed. 

Inasmuch,  however,  as  the  Permanent  Court  was  declared 
by  Article  21  to  be  “competent  for  all  arbitration  cases”  it  is 
manifest  that  the  framers  of  the  Convention  contemplated  that 
questions  other  than  those  of  a judicial  nature  might  be  sub- 
mitted to  the  Permanent  Court.  There  was  thus  created  a 
single  institution  which  might  decide  purely  legal  questions 
on  the  basis  of  respect  for  law  and  broader  questions  of  a 
non- judicial  nature — either  or  both  of  which  were  to  be 
decided  by  judges,  that  is  arbiters,  chosen  by  the  parties  in 
controversy. 

In  modern  States  judicial  questions  are  decided  by  judges  in 
courts  of  justice  and  the  judges  are  not  the  direct  appointes 
of  the  parties.  In  matters  of  purely  private  interest  which 
may  be  compromised,  judges  of  the  parties’  choice  are  as  much 
in  place  as  they  would  be  out  of  place  in  a court  of  justice. 

The  difference  between  judicial  and  non-judicial  questions 


‘Article  15. 


THE  COURT  OF  ARBITRAL  JUSTICE 


425 


and  the  procedure  applicable  to  each  was  thus  outlined  by  His 
Excellency  M.  Bourgeois : 

If  there  are  not  at  present  any  judges  at  The  Hague  it  is  be- 
cause the  Conference  of  1899,  taking  into  consideration  the 
whole  field  open  to  arbitration,  intended  to  leave  to  the  parties 
the  duty  of  choosing  their  judges,  which  choice  is  essential  in 
all  cases  of  peculiar  gravity.  We  should  not  like  to  see  the 
court  created  in  1899  lose  its  character  as  a real  court  of  arbitra- 
tion entirely,  and  we  intend  to  preserve  this  freedom  of  choice 
of  the  judges  in  all  cases  where  no  other  rule  is  provided. 

In  controversies  of  a political  nature  especially,  we  think 
that  this  will  always  be  the  real  rule  of  arbitration,  and  that 
no  nation,  big  or  small,  will  consent  to  go  before  a court  of  arbi- 
tration unless  it  takes  an  active  part  in  the  appointment  of  the 
members  composing  it. 

But  is  the  case  the  same  in  questions  of  apurely  legal  nature? 
Can  the  same  uneasiness  and  distrust  appear  here?  And  does 
not  every  one  realize  that  a real  court,  composed  of  real  juris- 
consults, may  be  considered  as  the  most  competent  organ  for 
deciding  controversies  of  this  character  and  for  rendering  deci- 
sions on  pure  questions  of  law? 

In  our  opinion,  therefore,  either  the  old  system  of  1899  or  the 
new  system  of  a truly  permanent  court  may  be  preferred,  accord- 
ing to  the  nature  of  the  case.  At  all  events  there  is  no  intention 
whatever  of  making  the  new  system  compulsory.  The  choice 
between  the  tribunal  of  1899  and  the  court  of  1907  will  be  op- 
tional, and  experience  will  show  the  advantages  or  disadvantages 
of  the  two  systems. 

The  object  of  the  framers  of  the  project  of  a Court  of  Arbitral 
justice  is  to  institute  a court  of  justice  for  questions  of  a 
judicial  nature,  in  accordance  with  the  view  of  M.  Bourgeois, 
without  attempting  in  any  way  to  subject  questions  of  a 
non-judicial  treatment  to  discussion  and  decision  of  a court 
of  law.  The  purpose  of  the  proposed  court  is  to  carry  the 
work  of  1899  a step  further  by  establishing  a court  of  arbitral 
justice  for  the  judicial  decision  of  questions  of  a judicial  nature. 

Article  20,  above  quoted,  looked  to  a Permanent  Court, 
but  it  is  common  knowledge  that  the  court  is  not  permanent, 
for  it  exists  only  for  the  special  case  and  has  to  be  created  anew 
for  each  case  submitted.  There  is  indeed  a permanent  list 
from  which  the  judges  can  be  and  indeed  must  be  chosen  for 
the  particular  case.  The  framers  of  the  Convention  meant 


426 


THE  HAGUE  PEACE  CONFERENCES 


the  court  to  be  accessible  at  all  times  to  the  suitors,  and  it  was 
established  in  order  to  facilitate  recourse  to  arbitration. 
This  excellent  end  was  frustrated  by  faulty  machinery,  because 
an  unconstituted  court  cannot  be  said  to  be  accessible  at  any 
time,  much  less  at  all  times.  As  M.  Asser,  a founder  and 
friend  and  arbiter  of  the  court,  said:  “It  is  difficult,  time-con- 
suming and  expensive  to  set  it  in  motion.” 

Mr.  Choate  said : 

One  cannot  read  the  debates  which  ushered  in  the  taking 
of  the  great  step  by  the  First  Conference  without  realizing  that 
it  was  undertaken  by  that  body  as  a new  experiment  and  not 
without  apprehension,  but  with  an  earnest  hope  that  it  would 
serve  as  a basis,  at  least,  of  further  advanced  work  in  the  same 
direction  by  a future  conference.  The  project  was  as  simple 
as  the  purpose  of  it  was  grand,  but,  as  Mr.  Asser  has  well  said 
in  his  eloquent  speech,  “it  created  a court  in  name  only  by 
furnishing  a list  of  jurists  and  other  men  of  skill  in  international 
law  from  whom  the  parties  to  each  litigation  might  select  judges 
to  determine  the  case,  who  should  sit  at  The  Hague  according 
to  machinery  provided  for  the  purpose  and  proceed  by  certain 
prescribed  methods,  if  no  others  were  agreed  upon  by  the 
parties ” 

We  do  not  err  in  saying  that  the  work  of  the  First  Confer- 
ence in  this  regard,  noble  and  far-reaching  as  it  was,  has  not 
proved  entirely  complete  and  adequate  to  meet  the  progressive 
demands  of  the  nations,  and  to  draw  to  The  Hague  Tribunal 
for  decision  any  great  part  of  the  arbitrations  that  have  been 
agreed  upon,  and  that  in  the  eight  years  of  its  existence  only 
four  cases  have  been  submitted  to  it,  and  of  the  sixty  judges, 
more  or  less,  who  were  named  as  members  of  The  Court  at  least 
two-thirds  have  not,  as  yet,  been  called  upon  for  any  service. 
It  is  not  easy,  or  perhaps  desirable,  at  this  stage  of  the  discus- 
sion, to  analyze  all  the  causes  of  the  failure  of  a general  or  fre- 
quent resort  by  the  nations  to  The  Hague  Tribunal,  but  a few 
of  them  are  so  obvious  that  they  may  be  properly  suggested. 
Certainly,  it  was  for  no  lack  of  adequate  and  competent  and 
distinguished  judges,  for  the  services  they  have  performed  in 
the  four  cases  which  they  have  considered,  have  been  of  the 
highest  character,  and  it  is  out  of  these  very  judges  that  we 
propose  to  constitute  our  new  proposed  court. 

I am  inclined  to  think  that  one  of  the  causes  which  has 
prevented  a more  frequent  resort  of  nations  to  The  Hague  Tri- 
bunal, especially  in  cases  of  ordinary  or  minor  importance,  has 
been  the  expensiveness  of  a case  brought  there,  and  it  should 


THE  COURT  OF  ARBITRAL  JUSTICE 


427 


be  one  element  of  reform  that  the  expense  of  the  court  itself, 
including  the  salaries  of  the  judges,  shall  be  borne  at  common 
expense  of  all  the  Signatory  Powers,  so  as  to  furnish  to  the 
suitors  a court  at  least  free  of  expense  to  them,  as  is  the  case 
with  suitors  of  all  nations  in  their  national  courts. 

The  fact  that  there  was  nothing  permanent  or  continuous 
or  connected  in  the  sessions  of  the  court,  or  in  the  adjudication 
of  the  cases  submitted  to  it,  has  been  an  obvious  source  of 
weakness  and  want  of  prestige  in  the  tribunal.  Each  trial  it 
had  before  it  had  been  wholly  independent  of  every  other,  and 
its  occasional  utterances,  widely  distant  in  point  of  time  and 
disconnected  in  subject-matter,  have  not  gone  far  towards 
constituting  a consistent  body  of  international  law  or  of  valu- 
able contributions  to  international  law,  which  ought  to  emanate 
from  an  international  tribunal  representing  the  power  and  might 
of  all  the  nations.  In  fact  it  has  thus  far  been  a court  only  in 
name,  a framework  for  the  selection  of  referees  for  each  partic- 
ular case,  never  consisting  of  the  same  judges.  It  has  done 
great  good  so  far  as  it  has  been  permitted  to  work  at  all,  but 
our  effort  should  be  to  try  and  make  it  a medium  of  vastly 
greater  and  constantly  increasing  benefit  to  the  nations  and 
to  mankind  at  large. 

Let  us,  then,  seek  to  develop  out  of  it  a Permanent  Court 
which  shall  hold  regular  and  continuous  sessions,  which  shall 
consist  of  the  same  judges,  which  shall  pay  due  heed  to  its  own 
decisions,  which  shall  speak  with  the  authority  of  the  united 
voice  of  the  nations,  and  gradually  build  up  a system  of  inter- 
national law,  definite  and  precise,  which  shall  command  the 
approval  and  regulate  the  conduct  of  the  nations.  By  such  a 
step  in  advance,  we  shall  justify  the  confidence  which  has  been 
placed  in  us  and  shall  make  the  work  of  this  Second  Conference 
worthy  of  comparison  with  that  of  the  Conference  of  1899.* 

The  court,  outlined  by  the  Project,  is  meant  to  realize  the 
views  of  the  framers  of  1899;  it  is  a court  in  essence  and  in 
fact,  composed  of  actual  and  prospective  judges,  and  it  is 
permanent  because  in  existence  and  in  session. 

In  thus  calling  attention  to  some  of  the  palpable  defects 
of  the  Convention  of  1899,  no  attempt  is  made  to  belittle  the 
Permanent  Court  which  is  a landmark  in  the  development  of 
international  arbitration.  Eight  years  have  now  passed 
since  the  creation  of  the  Permanent  Court  of  Arbitration  and 


* La  DeuxiSme  Conference  Internationale  de  la  Paix,  Vol.  II,  First 
Commission,  First  Sub-Commission,  9th  Session,  August  1,  1907. 


428 


THE  HAGUE  PEACE  CONFERENCES 


the  court  has  been  called  into  being  four  times.  The  institu- 
tion has  been  tested  and  has  stood  the  test,  and  we  are  able  to 
view  the  court  in  the  light  of  experience.  Now  this  experi- 
ence shows  that  the  theory  of  1899  was  correct  and  that  the 
institution  created  is  workable  but  expensive;  it  likewise 
shows  that  it  may  be  improved  and  that  the  great  improve- 
ment consists  in  making  the  court,  in  fact  as  in  theory,  per- 
manent. The  most  eloquent  testimony  to  the  necessity  of 
this  improvement  is  the  fact  that  a founder  and  friend,  and 
the  most  experienced  and  authoritative  of  living  arbiters, 
M.  de  Martens,  proposed  in  the  very  first  days  of  the  Conference 
a project  for  the  permanence  of  a judicial  committee  to  be 
selected  from  the  present  court. 

If  the  very  father  can  lay  hands  upon  the  child  and  suggest 
that  he  mend  his  ways,  it  is  not  to  be  wondered  at  that  the 
godfather  should  speak  more  boldly. 

The  United  States  of  America  has  always  favored  interna- 
tional arbitration,  in  theory  as  in  practice,  as  the  heavy 
volumes  of  Moore’s  International  Arbitrations  amply  show. 
In  1899  the  American  delegation  cooperated  earnestly  in  the 
creation  of  the  present  Permanent  Court,  and  it  has  appeared 
as  plaintiff  in  two  of  the  four  cases  tried  before  it.  As  the 
United  States  was  reasonably  successful  in  each  case,  it  can- 
not be  said  that  it  is  a defeated  litigant  that  suggests  changes 
and  improvements  of  a fundamental  nature.  The  experience 
of  the  United  States  with  its  Supreme  Court  leads  it  to  believe 
that  a Court  of  ArbitralJustice  can  be  created  to  decide  inter- 
national disputes  between  equal  and  sovereign  States  of  the 
family  of  nations,  just  as  surely  and  truly  as  the  Supreme  Court 
decides  disputes  of  an  international  character  between  the 
States  of  the  American  Union. 

The  United  States  has  always  believed  and  said  that  the 
Court  of  1899  is  the  first  step  to  a Permanent  Court  of  Arbitral 
Justice — and  in  so  saying  it  merely  consults  its  own  recent 
past.  It  may  not  be  known  generally  that  the  United  States 
instituted  a Court  of  Arbitration  a hundred  and  thirty  years 
ago — during  the  War  of  Independence.  The  thirteen  equal 


THE  COUET  OP  ARBITRAL  JUSTICE 


429 


sovereign  States,  then  at  war  with  Great  Britain,  organ- 
ized a temporary  and  loose  Confederation.  In  the  funda- 
mental and  constitutional  act,  called  the  Articles  of  Confeder- 
ation, arbitration  of  international  difficulties  between  the 
States  was  established  in  principle  and  in  fact  in  the  follow- 
ing manner. 

Congress  was  to  be  the  last  resort  in  controversies  between 
the  States  over  boundaries,  questions  of  jurisdiction  and  other 
matters.  When  the  authorities  or  authorized  agents  of  a 
State  petitioned  Congress  to  settle  a dispute  ordifference,  notice 
of  the  fact  was  given  to  the  other  State  in  controversy  and  a 
day  set  for  the  appearance  of  the  two  parties  by  their  agents, 
who  were  thereupon  directed  to  appoint  members  of  the  tri- 
bunal by  common  consent.  Failing  an  understanding.  Con- 
gress designated  three  citizens  of  each  of  the  States  of  the 
Union,  and  from  the  list  thus  formed  each  party,  beginning 
with  the  defendant,  could  strike  alternately  a name  until 
only  thirteen  remained.  From  these  thirteen,  seven  or  nine 
were  drawn  by  lot,  and  the  persons  thus  designated  composed 
the  court,  which  decided  the  controversy  by  a majority  of 
votes.  A quorum  of  at  least  five  judges  was  required.  In 
case  of  non-appearance  of  one  of  the  parties  without  a valid 
reason,  or  of  his  refusal  to  take  part  in  the  formation  of  the 
tribunal,  the  Secretary  of  the  Congress  performed  this  duty  in 
his  stead.  The  award  was  final  in  all  cases,  and  each  State 
pledged  itself  to  carry  out  the  award  in  good  faith.  The 
judges  had  to  take  an  oath  before  one  of  the  judges  of  the 
Supreme  or  Superior  Court  of  the  State  where  the  tribunal 
sat  that  they  would  perform  their  duties  carefully  and  without 
partiality  or  desire  for  gain. 

Even  a superficial  examination  of  these  provisions  shows 
the  striking  likeness  between  the  Court  at  The  Hague  and  its 
American  predecessor  and  prototype. 

The  history  of  the  American  Court  of  Arbitration  is  quickly 
told : it  failed  to  justify  its  existence,  and,  lacking  the  essential 
elements  of  a court  of  justice,  it  was  superseded  within  ten 
years  of  its  creation  by  the  present  Supreme  Court  in  which 


430 


THE  HAGUE  PEACE  CONFERENCES 


controversies  which  might  lead  to  war,  if  between  sovereign 
States,  are  settled  by  judicial  means. ^ 

Will  history  repeat  itself?  Conscious  of  the  weakness  and 
defects  of  the  American  Court  of  Arbitration  and  recognizing 
the  admirable  results  of  the  judicial  settlement  of  international 
controversies  by  a Permanent  Court  composed  of  judges, 
the  American  delegation  presented  a project  for  the  establish- 
ment of  a really  Permanent  Court,  composed  of  learned  and 
experienced  judges,  open  to  all  the  Signatory  Powers  without 
the  delays  and  formality  necessarily  involved  in  the  organiza- 
tion for  each  case  of  a special  tribunal. 

Passing  from  the  considerations  of  a general  nature  to  the 
actual  proceedings  in  the  Conference,  the  First  sub-commission 
of  the  First  Commission  found  itself  confronted,  at  the  session 
of  August  1,  1907,  by  two  propositions  looking  to  the  perma- 
nency of  the  international  court.  The  first  was  a Russian 
project,^  the  second  the  original  project  of  the  American  Dele- 
gation.^ 

The  discussion  that  took  place  on  August  1 and  on  August 
3 was  of  a general  nature,  and  dealt  with  the  question  whether 
the  establishment  of  a Permanent  Court  composed  of  judges 
ready  to  receive  and  decide  cases  submitted  to  them  was  in 
itself  desirable  in  present  conditions. 

2.  Discussion  in  the  First  Commission  of  the 
Proposed  Court  of  Arbitral  Justice 

At  the  session  of  August  1,  Mr.  Choate  unfolded  and 
explained  the  American  project.  He  began  by  quoting  the 
following  passage  from  President  Roosevelt’s  letter  of  April 
5,  1907  to  Mr.  Carnegie,  read  at  the  Peace  Congress  held  at 
New  York: 

‘Missouri  v.  Illinois,  200  U.  S.,  496,  518  (1905). 

* La  Deuxifeme  Conference  Internationale  de  la  Paix,  1907,  Vol.  II,  First 
Commission,  Annex  75. 

‘ For  the  text  of  this  important  document,  see  Appendix,  pp.  816-817. 


THE  COURT  OF  ARBITRAL  JUSTICE 


431 


I hope  to  see  adopted  a general  arbitration  treaty  among 
the  nations,  and  I hope  to  see  The  Hague  Court  greatly  increased 
in  power  and  permanency,  and  the  judges  in  particular  made 
permanent  and  given  adequate  salaries,  so  as  to  make  it  increas- 
ingly probable  that  in  each  case  that  may  come  before  them 
they  will  decide  between  the  nations,  great  or  small,  exactly 
as  a judge  within  our  own  limits  decides  between  the  individuals, 
great  of  small,  who  come  before  him.  Doubtless  many  other 
matters  will  be  taken  up  at  The  Hague ; but  it  seems  to  me  that 
this  of  a general  arbitration  treaty  is  perhaps  the  most  im- 
portant. 

Mr.  Choate  then  stated  that  the  Instructions  to  the  Amer- 
ican delegation  were 

to  secure,  if  possible,  a plan  by  which  the  judges  shall  be  so 
selected  from  the  different  countries  that  the  different  systems 
of  law  and  procedure  and  the  principal  languages  shall  be  fairly 
represented.'  .... 

We  have  not  in  the  proposition  which  we  have  offered, 
attempted  even  to  sketch  the  details  of  the  constitution  and 
powers  and  character  of  our  proposed  court.  We  have  not 
thought  it  possible  that  one  nation  could  of  itself  prescribe  or 
even  suggest  such  details,  but  that  they  should  be  the  result  of 
consultation  and  conference  among  all  the  nations  represented 
in  a suitable  committee  to  be  appointed  by  the  President  to 
consider  them. 

The  plan  proposed  by  us  does  not  in  the  least  depart  from 
the  voluntary  character  of  the  court  already  established.  No 
nation  can  be  compelled  or  constrained  to  come  before  it,  but 
it  will  be  open  for  all  who  desire  to  settle  their  differences  by 
peaceful  methods  and  to  avoid  the  terrible  consequences  and 
chances  of  war. 

In  the  first  Article  of  our  Project  we  suggest  that  such  a Per- 
manent Court  of  Arbitration  ought  to  be  constituted — and 
that  is  the  great  question  of  principle  to  be  first  decided.  And 
to  that  end  we  submit  that  it  should  be  composed  of  not  more 
than  seventeen  judges,  of  whom  nine  should  be  a quorum, 
men  who  had  enjoyed  the  highest  moral  consideration  and  a 
recognized  competence  in  questions  of  international  law.  That 
they  shall  be  designated  and  elected  by  the  nations,  but  in  a 
way  prescribed  by  this  entire  Conference,  so  that  all  the  nations, 
great  and  small,  shall  have  a voice  in  designating  the  manner 
of  their  choice;  and  that  they  shall  be  chosen  from  so  many 
different  countries  as  fairly  to  represent  all  the  different  systems 
of  existing  law  and  procedure,  all  the  principal  languages  of 


'For  instructions,  see  Vol.  II,  p.  191. 


432 


THE  HAGUE  PEACE  CONFEEENCES 


the  world,  all  the  great  human  interests  and  a widely  distributed 
geographical  character;  that  they  shall  be  named  for  a certain 
number  of  years,  to  be  decided  by  the  Conference,  and  shall  hold 
their  offices  until  their  respective  successors  to  be  chosen  as 
the  Conference  shall  prescribe,  shall  have  accepted  and  qualified. 

Our  second  Article  provides  that  our  permanent  Court  shall 
sit  annually  at  The  Hague  upon  a specified  date,  the  same  date 
in  each  year,  to  be  fixed  by  the  Conference,  and  that  they  shall 
remain  in  session  as  long  as  the  necessity  of  the  business  that 
shall  come  before  them  may  require.  That  they  shall  appoint 
their  own  officers  and,  except  as  this  or  the  succee^ng  Conference 
prescribes,  shall  regulate  their  own  procedure.  That  every 
decision  of  the  court  shall  be  by  a majority  of  voices,  and  that 
nine  members  shall  constitute  a quorum,  although  this  number 
is  subject  to  the  decision  of  the  Conference. 

We  desire  that  the  judges  shall  be  of  equal  rank,  shall  enjoy 
diplomatic  immunity  and  shall  receive  a salary  to  be  paid  out 
of  the  common  purse  of  the  nations,  sufiicient  to  justify  them 
in  devoting  to  the  consideration  of  the  business  of  the  court 
all  the  time  that  shall  be  necessary. 

By  the  third  Article  we  express  our  preference  that  in  no 
case,  unless  the  parties  otherwise  agree,  shall  any  judge  of 
the  court  take  part  in  the  consideration  or  decision  of  any 
matter  coming  before  the  court  to  which  his  own  nation  shall 
be  a party.  In  other  words,  we  would  have  it  in  all  respects 
strictly  a court  of  justice  and  not  partake  in  the  least  of  the 
nature  of  a joint  commission. 

By  the  fourth  article  we  would  make  the  jurisdiction  of 
this  Permanent  Court  large  enough  to  embrace  the  hearing  and 
decision  of  all  cases  involving  differences  of  an  international 
character  between  sovereign  states,  which  they  had  not  been 
able  to  settle  by  diplomatic  methods,  and  which  shall  be  sub- 
mitted to  it  by  an  agreement  of  the  parties;  that  it  shall  have 
not  only  original  jurisdiction  but  that  room  shall  be  given  to 
it  to  entertain  appeals,  if  it  should  be  thought  advisable,  from 
other  tribunals,  and  to  determine  the  relative  rights,  duties 
or  obligations  arising  out  of  the  sentences  or  decrees  of  com- 
missions of  inquiry  or  specially  constituted  tribunals  of  arbi- 
tration. 

Our  fifth  article  provides  that  the  judges  of  the  court  shall 
be  competent  to  act  as  judges  upon  commissions  of  inquiry,  or 
special  arbitration  tribunals,  but  in  that  case,  of  course,  not 
to  sit  in  review  of  their  own  decisions,  and  that  the  court  shall 
have  power  to  entertain  and  dispose  of  any  international  contro- 
versy that  shall  be  submitted  to  it  by  the  Powers. 

And  finally,  by  article  sixth,  that  its  membership  shall  be 
made  up  as  far  as  possible  out  of  the  membership  of  the  existing 
court,  from  those  judges  who  have  been  or  shall  be  named  by 


THE  COURT  OF  ARBITRAL  JUSTICE 


433 


the  parties  now  constituting  the  present  Conference,  in  con- 
formity with  the  rules  which  this  Conference  shall  finally  pre- 
scribe.^ 

Mr.  Choate  was  followed  by  another  member  of  the  American 
delegation  who  explained  technically  and  in  detail  the  princi- 
ples upon  which  a Permanent  Court  should  be  based.  ^ 

His  Excellency  M.  de  Martens,  who,  as  has  already  been 
said,  was  a founder  and  friend  of  the  Permanent  Court  of 
Arbitration,  thereupon  pronounced  a remarkable  discourse, 
showing  in  the  first  place  that  under  the  terms  of  the  program 
for  the  Conference  the  creation  of  a Permanent  Court  was  per- 
missible, and  giving  to  the  idea  of  permanence  the  support 
that  comes  from  theoretical  and  practical  experience  in  inter- 
national arbitration. 

We  are  agreed,  he  said,  on  one  essential  and  indisputable  fact, 
namely,  that  the  present  Permanent  Court  is  not  organized  as 
it  should  be.  An  improvement  is  needed  and  it  is  our  task  to 
make  it.  This  task  is  an  important  one — indeed,  the  most 
important  one,  in  my  opinion,  of  all  those  devolving  upon  us. 

I have  under  my  eyes  the  Russian  Circular  of  April  3,  1906, 
which  contains  the  program  adopted  by  all  the  Powers.  It 
speaks,  first  of  all,  of  the  necessity  of  perfecting  the  principal 
creation  of  the  Conference  of  1899 — that  is,  the  Permanent 
Court.  The  First  Conference  departed  with  the  conviction  that 
its  task  would  be  completed  subsequently  as  a result  of  the 
steady  progress  of  enlightenment  among  peoples,  and  as  the 
results  of  acquired  experience  manifested  themselves.  Its 
most  important  creation,  the  International  Court  of  Arbitration, 
is  an  institution  which  has  already  been  tested  and  which  has 
grouped  together  for  the  general  welfare,  as  an  aeropagus,  juris- 
consults enjoying  universal  respect.^ 

However,  M.  de  Martens  realized  the  deficiencies  in  the 
work  of  1899.  “The  Court  of  1899  is  but  an  idea  which  occa- 
sionally assumes  shape  and  then  again  disappears.”  This 
has  induced  the  Russian  delegation  to  present  a project,  but 
it  does  not  by  any  means  mean  to  offer  this  project  as  the 

‘ La  Deuxi^me  Conf4rence  Internationale  de  la  Paix,  Vol.  II,  First 
Commission,  First  Sub-Commission,  9th  Session,  August  1,  1907. 

' Ibid. 

^ Ibid. 


434 


THE  HAGUE  PEACE  CONEEKENCES 


sole  basis  of  the  deliberations.  The  project  in  the  first  place 
sanctions  the  absolute  choice  of  the  arbitrators  by  the  Powers. 
The  idea  of  the  list  is  retained,  but,  considering  that  the  arbi- 
trators composing  it  should  be  known  and  be  at  least  in  part 
at  the  disposal  of  the  nations,  M.  de  Martens  suggested  the 
idea  of  periodical  meetings,  during  which  the  members  would 
select  a permanent  tribunal  of  arbitration  to  be  always  at  the 
disposal  of  the  powers  which  might  desire  to  have  recourse  to 
it. 

This  Permanent  Court  would  be  composed  of  three  members. 
However,  the  number  of  judges  could  be  increased  at  any  time. 
Instead  of  three  members,  five,  seven,  or  nine  members  could 
be  elected.  This  is  a question  of  detail. 

The  advantage  of  the  Russian  project  consists  in  the  reten- 
tion of  the  present  foundations,  on  which  it  proposes  to  con- 
struct another  edifice  better  adapted  to  the  just  demands  of 
international  life. 

Baron  Marschall  von  Bieberstein  pledged  in  brief  but  elo- 
quent terms  the  support  of  the  German  delegation. 

I declared  a few  days  ago  that  the  German  Government  con- 
siders the  establishment  of  a Permannet  Court  of  arbitration 
as  a real  step  in  the  line  of  progress. 

I wish  now,  while  this  discussion  is  being  opened,  formally  to 
repeat  my  declaration  in  the  name  of  the  German  delegation. 
I take  real  pleasure  in  accepting  the  general  principles  so  elo- 
quently defended  by  the  delegates  from  the  United  States. 

We  are  ready  to  devote  all  our  energy  toward  the  accomplish- 
ment of  this  task  which  M.  de  Martens  very  correctly  defined, 
on  presenting  it,  as  one  of  the  most  important  ones  of  the  Second 
Peace  Conference. ‘ 

Sir  Edward  Fry  gave  to  the  idea  the  support  of  the  British 
delegation,  and  Messrs,  de  la  Barra,  on  behalf  of  Mexico; 
Larreta,  Drago,  and  Saenz  Pena,  first  delegates  from  Argen- 
tina, stated  that  their  delegations  were  in  favor  of  the  idea 
of  permanency.  At  the  following  session,  Messrs.  Esteva, 
first  delegate  from  Mexico ; Milovanovitch,  in  the  name  of  the 

' La  Deuxi^me  Conference  Internationale  de  la  Paix,  Vol.  II,  First 
Commission,  First  Sub-Commission,  9th  Session,  August  1,  1907. 


THE  COURT  OF  ARBITRAL  JUSTICE 


435 


Servian  delegation;  Belisario  Porras,  delegate  from  the  Repub- 
lic of  Panama;  J.  N.  L^ger,  delegate  from  Haiti;  Jos6  Gil 
Fortoul,  delegate  from  Venezuela;  Ivan  Karandjouloff,  dele- 
gate from  Bulgaria;  the  Marquis  de  Several,  in  behalf  of  Portu- 
gal; Samad  Khan  Momtas-es-Saltaneh,  in  behalf  of  Persia;  and 
J.  P.  Castro,  in  behalf  of  Uruguay,  stated  that  they  agreed  to 
the  general  outlines  of  the  American  project,  some  without 
any  reservation  and  others  making  reservations  regarding  the 
composition  of  the  court.  Mr.  Esteva,  in  particular,  stated 
that  he  voted  only  with  reservations, 

because  the  principles  which  are  to  serve  as  a basis  in  the 
establishment  of  the  Permanent  Court  were  of  such  great  im- 
portance that  the  Mexican  delegation  would  not  give  its  final 
vote  until  it  had  learned  of  the  various  projects  for  the  organiza- 
tion of  the  court. ' 

In  the  session  of  the  third  of  August,  Mr.  Choate  repeated 
what  he  had  previously  said  in  his  discourse  that  the 
proposed  court  was  not  to  be  obligatory,  that  it  was  not  to 
supplant  the  Permanent  Court  of  1899,  and  that  each  litigant 
should  have  the  free  and  untrameled  right  to  choose  which 
of  the  two  institutions  he  preferred. 

Whereupon  M.  Beernaert,  of  Belgium,  delivered  a long  and 
careful  discourse  in  which  he  replied  to  the  arguments  in 
favor  of  the  proposed  court,  and  expressed  his  profound  and 
earnest  conviction  that  the  line  of  progress  was  in  the  direc- 
tion of  1899,  that  the  institution  of  1899  was  preferable  to 
the  proposed  one,  and  that  the  new  court  with  permanent 
judges  imposed  upon  the  litigants  would  destroy  the  principle 
of  selection  which  is  the  essence  of  arbitration.^ 

Sir  Edward  Fry  replied  briefly  to  the  remarkable  discourse 
of  M.  Beernaert  and  stated  in  a few  short  sentences  the  prob- 
lem before  the  commission : 

If  it  were  a question  of  supplanting  the  present  Permanent 
Court  by  a new  court  to  be  created,  I should  without  hesitancy 
side  with  M.  Beernaert,  but  the  American  scheme  proposes 

* La  Deuxi^me  Conference  Internationale  de  la  Paix,  Vol.  II,  First 
Commission,  First  Sub-Commission,  lOth  Session,  August  3,  1907. 


436 


THE  HAGUE  PEACE  CONFERENCES 


the  creation  of  a new  court  in  addition  to  the  present  court. 
The  two  courts  will  work  together  toward  the  same  goal,  and 
the  one  which  appears  to  answer  the  needs  of  the  nations  best 
will  survive. 

The  choice  will  be  free  to  the  nations,  and  it  is  very  certain 
that  the  most  effective  court  will  be  chosen.* 

The  discussion  was  practically  closed  by  the  eloquent  and 
unanswerable  discourse  of  M.  Leon  Bourgeois,  who  spoke 
not  as  President  but  as  first  delegate  of  France,  distinguishing 
between  the  Permanent  Court  of  Arbitration  of  1899  and  the 
proposed  court,  showing  conclusively  that  each  would  have 
its  separate  and  distinct  sphere  of  interest  and  influence,  and 
that  the  existence  of  the  two  courts  would  be  a double  guar- 
antee for  the  world’s  progress  toward  justice  and  peace. 

What  we  must  find  out  is  whether,  for  limited  purposes  and 
under  special  conditions,  it  is  not  possible  to  secure  the  working 
of  arbitration  more  quickly  and  easily  under  a new  form  in  no 
way  incompatible  with  the  first  form. 

For  questions  of  a purely  legal  nature,  a real  court  composed 
of  jurisconsults  should  be  considered  as  the  most  competent 

organ It  is  therefore  either  the  old  or  the  new  system 

that  is  to  be  preferred,  according  to  the  nature  of  the  cases. 

Thus  we  see  before  us  as  two  distinct  domains,  that  of  per- 
manency and  that  of  compulsoriness.  However,  we  reach  the 
same  conclusions  in  both  domains. 

In  the  domain  of  universal  arbitration  there  is  a zone  of  pos- 
sible compulsion  and  a zone  of  necessary  option.  There  is  a 
vast  number  of  political  questions  which  the  condition  of  the 
world  does  not  yet  permit  to  be  submitted  universally  and  com- 
pulsorily to  arbitration. 

Likewise,  in  the  domain  of  permanency,  there  are  cases  whose 
nature  is  such  as  to  permit  and  perhaps  to  warrant  their  sub- 
mission to  a permanent  tribunal.  However,  there  are  others 
for  which  the  system  of  1899  remains  necessary,  for  it  alone  can 
give  the  nations  the  confidence  and  security  without  which  they 
will  not  go  before  arbitrators. 

Thus,  it  is  seen  that  the  cases  in  which  the  Permanent  Court 
is  possible  are  the  same  as  those  in  which  compulsory  arbitration 
is  acceptable,  being,  generally  speaking,  cases  of  a legal  nature. 
Whereas  political  cases,  in  which  the  nations  should  be  allowed 
freedom  to  resort  to  arbitration,  are  the  very  ones  in  which  arbi- 

* La  Deuxieme  Conference  Internationale  de  la  Paix,  Vol.  II,  First 
Commission,  First  Sub-Commission,  10th  Session,  August  3,  1997. 


THE  COURT  OF  ARBITRAL  JUSTICE 


437 


trators  are  necessary  rather  than  judges,  that  is,  arbitrators 
chosen  at  the  time  the  controversy  arisesd 

The  president  having  thereupon  submitted  the  question  of 
putting  the  American  proposition  to  a vote,  twenty-eight 
votes  were  cast  in  favor  of  taking  under  consideration  the 
establishment  of  a Permanent  Court  of  Arbitration,  and  twelve 
States  refraining  from  voting.^ 

The  American  and  Russian  propositions  were  then  referred 
to  the  Committee  of  Examination,  for  the  elboration  of  the 
project,® 

3.  Discussion  in  the  Committee  of  Examination  B 

The  Committee  of  Examination  was  therefore  confronted 
by  two  projects  at  its  first  meeting  on  August  13,  1907.  The 
Russian  project  was  not  discussed.  The  American  project 
served  as  a basis  for  discussion,  but  it  is  useless  to  con- 
sider it  in  detail,  for  it  was  withdrawn  in  favor  of  a common 
project  of  the  German,  American  and  English  delegations. 
Later,  at  the  third  meeting  of  August  29,  His  Excellency 
M.  Barbosa,  first  delegate  from  Brazil,  presented  a project 
which  he  accompanied  by  a powerful  address  in  which  he 
went  into  considerable  detail.  This  project  was  afterwards 
withdrawn  by  Mr.  Barbosa.  Propositions  from  the  Bulgarian, 
Haitian  and  Uruguayan  delegations  regarding  the  composi- 
tion of  a Permanent  Court  were  also  presented. 

The  Russian  project  sought  to  make  use  of  the  Permanent 
Court  and  out  of  its  membership  to  select  a small  committee 

* La  Deuxieme  Conference  Internationale  de  la  Paix,  Vol.  II,  First 
Commission,  First  Sub-Commission,  10th  Session,  August  3,  1908. 

® Those  voting  in  favor  of  the  motion  were  Germany,  United  States,  Ar- 
gentina, Brazil,  Bulgaria,  Chile,  China,  Colombia,  Cuba,  Dominican  Repub- 
lic, France,  Great  Britain,  Haiti,  Italy,  Japan,  Luxembourg,  Mexico,  Mon- 
tenegro, Panama,  Paraguay,  Netherlands,  Peru,  Persia,  Portugal,  Russia, 
Salvador,  Uruguay,  Venezuela.  Those  refraining  were  Austria-Hungary, 
Belgium,  Denmark,  Spain,  Greece,  Norway,  Roumania,  Servia,  Siam, 
Sweden,  Switzerland,  Turkey. 

^ The  above  account  is  freely  translated  from  the  Report  to  be  foimd 
in  La  Deuxi&me  Conf4rence  Internationale  de  la  Paix,  1907,  Actes  et 
Documents,  Vol.  I,  pp.  347-354. 


438 


THE  HAGUE  PEACE  CONFERENCES 


ready  at  any  time  to  receive  cases  and  to  decide  them.  For 
example,  the  members  of  the  Permanent  Court  of  Arbitration 
were  to  assemble  every  year  at  The  Hague  in  plenary  session: 

1.  To  select  by  secret  ballot  three  members  from  the  hst  of 
arbitrators,  who  must  be  ready  at  any  time  during  the  ensuing 
year  immediately  to  constitute  the  Permanent  Tribunal  of 
Arbitration;  2,  to  take  cognizance  of  the  annual  report  of  the 
Administrative  Council  and  of  the  International  Birreau;  3,  to 
express  the  opinion  of  the  Permanent  Court  of  Arbitration  upon 
the  questions  which  have  arisen  during  the  sessions  of  the  tri- 
bunal of  arbitration,  as  well  as  on  the  acts  of  the  Administrative 
Council  and  the  International  Bureau;  4,  to  exchange  their  ideas 
regarding  the  progress  of  international  arbitration  in  general. 

The  members  of  the  Permanent  Tribrmal  of  Arbitration 
were  to  be  eligible  for  reelection.  An  examination  of  the 
project  shows  that  every  year  the  members  of  the  Permanent 
Court  of  Arbitration,  of  whom  there  could  not  be  more  than 
four  from  each  State,  were  to  assemble  at  The  Hague  to 
form  themselves  into  a committee  on  arbitration,  and  to  devise 
means  whereby  arbitration  and  the  Permanent  Court  might 
be  made  more  effective.  They  were  to  choose  from  their 
assembly  three  members,  who,  when  selected,  would  probably 
reside  in  The  Hague  and  devote  their  time  exclusively  to 
cases  presented  for  their  decision.  The  distinction  is  thus 
clearly  drawn  between  the  Permanent  Court  on  the  one  hand, 
which  is  in  reality  nothing  but  a panel  or  list  of  judges,  and  a 
tribunal  of  arbitration  and  a court  in  the  ordinary  acceptation 
of  the  term.  The  Russian  project  if  adopted  would  have  been 
a decided  improvement  upon  the  present  Permanent  Court, 
because  it  would  have  created  a tribunal  in  session  before 
which  litigants  might  appear.  The  aim  of  the  project  undoubt- 
edly was  to  establish  this  Permanent  Tribunal  and  to  interest 
the  permanent  panel  in  the  procedure  by  having  the  judges 
assemble  at  The  Hague  and  constitute  the  tribunal  for  the  suc- 
ceeding year.  The  Russian  project  was  not  discussed  in  the 
Committee  of  Examination,  but  the  suggestion  of  a permanent 
tribunal  composed  of  three  members  appears  in  the  project 
drafted  by  the  committee  and  ultimately  accepted  by  the 
Conference. 


THE  COURT  OF  ARBITRAL  JUSTICE 


439 


The  Brazilian  proposition  was  designed  to  constitute  a 
workable  tribunal  in  accordance  with  the  requirements  of 
juridical  equality,  not  merely  in  right,  but  m the  exercise  of 
the  right.  Each  Signatory  Power  was  to  designate  a person 
able  and  willing  to  serve  as  a judge,  and  each  person  so  desig- 
nated was  to  serve  for  a period  of  nine  years.  In  order  that 
the  court  should  deliberate  in  plenary  session  it  was  necessary 
for  at  least  one-quarter  of  the  members  appointed  to  be 
present,  and  in  order  to  assure  the  possibility  of  this  the  mem- 
bers appointed  were  to  be  divided  into  three  groups,  according 
to  the  alphabetical  order  of  the  signatures  of  the  convention. 
The  judges  classed  in  each  of  these  three  groups  were  to  sit  in 
rotation  for  three  years,  during  which  they  were  obliged  to 
establish  their  residence  within  twenty-four  hours  of  The 
Hague,  to  which  they  might  be  summoned  by  telegraph. 
The  group  would  thus  form  the  court,  but  all  members  of  the 
court  were  to  have  a right,  if  they  desired,  to  attend  the 
plenary  sessions  even  although  they  did  not  belong  to  the 
group  in  session.  The  parties  at  variance  were  to  be  free  to 
submit  their  controversy  to  the  full  court  or  to  choose  from 
among  the  members  of  the  court  such  number  of  judges  as 
they  desired  to  consider  their  controversy.  The  court  was  to 
be  convened  in  plenary  session  to  pass  upon  controversies 
submitted  to  them  by  the  parties,  or  if  the  matter  in  litigation 
was  referred  to  a less  number  of  arbitrators,  then  the  full  court 
was  to  be  convened  upon  the  request  of  the  arbitrators  in 
order  to  settle  a question  raised  among  them  during  the  trial 
of  the  case. 

The  Brazilian  plan  was  thus  to  have  each  nation,  large  or 
small,  designate  one  judge,  and  as  forty-six  nations  were 
invited  to  The  Hague  we  may  place  the  number  of  judges  at 
forty-six.  These  forty-six  judges  were  to  be  arranged  in  an 
alphabetical  table  and  the  first  third  was  to  be  set  aside  as 
Group  1,  the  second  third  as  Group  2,  and  the  last  third  as 
Group  3.  The  membership  of  the  group  would  not  be  more 
than  fifteen;  it  might  be  less,  because  several  nations  might 
appoint  one  and  the  same  person  as  their  representative.  The 


440 


THE  HAGUE  PEACE  CONFERENCES 


Brazilian  plan  differed  from  the  project  elaborated  by  the 
committee  in  that  it  was  inconsistent  with  the  existence  of 
the  Permanent  Court  as  constituted  in  1899,  and  accordingly 
the  Brazilian  plan  contemplated  the  abohtion  of  this  court 
and  the  substitution  of  the  new  in  its  place.  As,  however, 
the  project  was  not  discussed  by  the  committee  and  was  with- 
drawn by  M.  Barbosa,  it  does  not  seem  advisable  to  discuss 
it  in  detail. 

As  far  as  is  known  the  American  delegation  was  the  only  one 
that  went  to  The  Hague  with  express  instructions  to  propose 
the  establishment  of  a Permanent  Court  of  Justice  composed 
of  judges  and  acting  under  a sense  of  judicial  responsibility. 
Secretary  Root  is  a partisan  of  a Permanent  Court,  and  he 
instructed  the  American  delegation  as  follows : 

The  method  in  which  arbitration  can  be  made  more  effective, 
so  that  nations  may  be  more  ready  to  have  recourse  to  it  volun- 
tarily and  to  enter  into  treaties  by  which  they  bind  themselves 
to  submit  to  it,  is  indicated  by  observation  of  the  weakness  of 
the  system  now  apparent.  There  can  be  no  doubt  that  the 
principal  objection  to  arbitration  rests  not  upon  the  unwilling- 
ness of  nations  to  submit  their  controversies  to  impartial  arbi- 
tration, but  upon  an  apprehension  that  the  arbitrations  to  which 
they  submit  may  not  be  impartial.  It  has  been  a very  general 
practice  for  arbitrators  to  act,  not  as  judges  deciding  questions 
of  fact  and  law  upon  the  record  before  them  under  a sense  of 
judicial  responsibility,  but  as  negotiators  effecting  settlements 
of  the  questions  brought  before  them  in  accordance  with  the 
traditions  and  usages  and  subject  to  all  the  considerations  and 
influences  which  affect  diplomatic  agents.  The  two  methods 
are  radically  different,  proceed  upon  different  standards  of  hon- 
orable obligation,  and  frequently  lead  to  widely  differing  results. 
It  very  frequently  happens  that  a nation  which  would  be  very 
willing  to  submit  its  differences  to  an  impartial  judicial  deter- 
mination is  unwilling  to  subject  them  to  this  Idnd  of  diplomatic 
process.  If  there  could  be  a tribunal  which  would  pass  upon 
questions  between  nations  with  the  same  impartial  and  imper- 
sonal judgment  that  the  Supreme  Court  of  the  United  States 
gives  to  questions  arising  between  citizens  of  the  different  States, 
or  between  foreign  citizens  and  the  citizens  of  the  United  States, 
there  can  be  no  doubt  that  nations  would  be  much  more  ready 
to  submit  their  controversies  to  its  decision  than  they  are  now 
to  take  the  chances  of  arbitration.  It  should  be  your  effort 


THE  COURT  OF  ARBITRAL  JUSTICE 


441 


to  bring  about  in  the  Second  Conference  a development  of  the 
Hague  Tribunal  into  a permanent  tribunal  composed  of  judges 
who  are  judicial  officers  and  nothing  else,  who  are  paid  adequate 
salaries,  who  have  no  other  occupation,  and  who  will  devote 
their  entire  time  to  the  trial  and  decision  of  international  causes 
by  judicial  methods  and  under  a sense  of  judicial  responsibility. 
These  judges  should  be  so  selected  from  the  different  countries 
that  the  different  systems  of  law  and  procedure  and  the  principal 
languages  shall  be  fairly  represented.  The  court  should  be 
made  of  such  dignity,  consideration  and  rank  that  the  best  and 
ablest  jurists  will  accept  appointment  to  it,  and  that  the  whole 
world  will  have  absolute  confidence  in  its  judgments. ‘ 

In  the  passage  just  quoted  the  difference  between  the  Court 
of  1899  and  the  proposed  Court  of  1907  is  pointed  out  clearly. 
The  first  is  a court  composed  of  honorable  men  with  high 
standards  of  justice,  but  who  do  not  need  to  have  had  legal 
training  or  judicial  experience.  The  court  proposed  by  the 
American  delegation  was  to  be  a court  in  the  technical  sense 
of  the  word,  composed  of  judges  who  had  had  experience  in 
the  practice  and  interpretation  of  law,  and  therefore  were 
competent  to  decide  difficulties  presented  to  them  “by  judicial 
methods  and  under  a sense  of  judicial  responsibility.”  The 
judges  were  not  to  be  selected  from  any  group  of  countries, 
but  chosen  in  such  a way  that  the  different  systems  of  law  and 
procedure  as  well  as  the  principal  languages  of  the  world  might 
be  fairly  represented. 

It  will  be  noted  that  the  instructions  of  Mr.  Root  determined 
the  character  of  the  court,  and  the  first  article  of  the  project 
as  ultimately  drafted  is  little  more  than  a paraphrase  of  his 
instructions;  for  the  court  is  not  only  to  be  free  and  easy  of 
access,  but,  to  be 

composed  of  judges  representing  the  various  juridical  systems 
of  the  world  and  capable  of  insuring  continuity  in  jurisprudence 
of  arbitration. 

After  weeks  of  careful  debate  and  discussion  in  the  Commit- 
tee of  Examination,  and  after  some  slight  amendments  in 


‘ See  Vol.  II,  p.  191. 


442 


THE  HAGUE  PEACE  CONFERENCES 


the  First  Commission  a project  of  thirty-five  articles  was 
eventually  adopted  by  the  Conference  and  recommended  for 
adoption  as  soon  as  the  Powers  should  agree  upon  the  choice 
of  judges  and  the  constitution  of  the  court.  The  project  of 
a convention  which  it  is  hoped  will  be  put  into  effect  by  the 
powers  in  the  near  future  is  divided  into  three  parts — Articles 
1 to  16  dealing  with  the  organization  of  the  court ; Articles  17 
to  33  regulating  its  jurisdiction  and  procedure;  and  Articles 
34  and  35  of  a purely  formal  nature  regarding  the  duration  of 
the  convention  and  its  ratification. 

4.  Analysis  op  the  Project  Framed  by  the  Committee 
OF  Examination,  Adopted  by  the  First  Commission 
AND  Recommended  by  the  Conference 

The  Permanent  Court  of  Arbitration  was  established  in  the 
year  1899 

with  the  object  of  facilitating  an  immediate  recourse  to  arbitra- 
tion for  international  differences  which  could  not  be  settled  by 
diplomatic  methods.* 

The  proposed  Court  of  1907  had  the  same  end  in  view,  namely, 
to  promote  the  cause  of  arbitration.  But  the  new  court  if 
established,  while  it  might  compete  with  the  old,  was  not 
intended  to  supplant  it,  for  the  contracting  powers  agreed  to 
constitute  it  “ without  altering  the  status  of  the  Permanent 
Court  of  Arbitration.”  The  Permanent  Court  of  1899  was  to  be 
accessible  at  all  times,  but  however  much  one  may  commend 
it,  still  we  must  admit  that  it  did  not  and  could  not  realize  the 
intention  of  its  founders  in  this  respect.  Indeed,  the  name  of 
the  institution  is  very  unfortunate,  because  there  is  in  reality 
no  permanent  court.  There  is  at  best  a panel  or  list  of  judges 
from  whom  the  Signatory  Powers  may  select  a number  to 
form  a temporary  tribunal  for  the  decision  of  a case  submitted 
to  it.  The  list  is  indeed  permanent;  the  tribunal  is  temporary, 
and  has  to  be  constituted  anew  for  each  case. 

As  the  Permanent  Court  is  not  a court  but  a list;  as  the  tri- 

* Convention  for  the  pacific  settlement  of  International  Disputes, 
Article  15. 


THE  COURT  OF  ARBITRAL  JUSTICE 


443 


bunal  constituted  with  much  difficulty  and  delay  for  each  case 
is  not  permanent,  but  temporary  and  occasional,  the  real 
designation  of  the  so-called  court  as  a court  is  a misnomer;  the 
permanence  of  a non-existing  court  is  a fiction,  and  the  pre- 
tension that  a non-existing  court,  to  be  created  from  a list  of 
judges  is  not  only  permanent  but  “accessible  at  all  times”  is 
self-deception.  The  true  nature  of  the  Permanent  Court  was 
clearly  and  repeatedly  pointed  out  by  Dr.  Zorn  during  the 
First  Conference.  Germany  accepted  it  because  it  was  not 
permanent,  although  fearful  that  if  established  it  might 
become  so.  The  designation  of  the  list  as  a Permanent  Court 
instead  of  a mere  panel  has  created  the  impression  that  a 
court  really  exists,  and  has  rendered  difficult  the  creation  of  a 
new  and  different  institution.  Such  is  the  magic  of  a name. 
The  project  of  1907  contemplated  the  creation  of  a truly  Per- 
manent Court  which  in  whole  or  in  part  should  hold  regular 
terms  and  be  in  session  at  The  Hague  during  the  life  of  the 
convention.  The  new  institution  was  to  be  easy  of  access 
inasmuch  as  it  would  be  open  to  any  contracting  party,  and 
it  was  to  be  free  in  that  the  expenses  of  the  court,  as  dis- 
tinct from  the  fees  of  counsel,  were  to  be  borne  by  the  com- 
munity of  nations.  The  temporary  tribunal  selected  by  the 
powers  in  controversy  might  be  composed  of  diplomats  or  jurists 
and  would  not  necessarily  represent  anything  but  the  confi- 
dence of  the  appointing  parties;  whereas  the  Court  of  Arbitral 
Justice  was  to  be  composed  of  judges  representing  the  various 
juridical  systems  of  the  world  and  capable  of  insuring  con- 
tinuity in  jurisprudence  of  arbitration.  This  last  qualifica- 
tion is  of  fundamental  importance,  because  an  international 
court  should  represent  the  various  juridical  systems  of  the 
world,  for  it  is  only  by  judges  trained  in  these  various  system 
that  we  can  hope  to  create  and  develop  that  international 
equity  which  would  be  at  once  the  honor  and  the  justification 
of  the  court.  And  finally,  the  importance  of  the  continuity  in 
jurisprudence  of  arbitration  should  not  be  overlooked,  because 
each  decision  of  a Permanent  Court,  if  not  absolutely  binding 
on  the  discretion  of  the  judges,  would  nevertheless  form  a 


444 


THE  HAGUE  PEACE  CONFEKENCES 


precedent,  and  a succession  of  precedents  would  build  up  a 
compact  body  of  international  law  and  jurisprudence.  This 
would  be  the  natural  consequence  of  a Permanent  Court  com- 
posed of  judges  sitting  for  a longer  or  shorter  time.  It  can 
hardly  be  expected  that  the  judgment  of  an  occasional  court 
will  profoundly  influence  the  judgment  of  a subsequent  tem- 
poraiy  tribunal  composed  of  different  judges.  The  esprit  de 
corps  is  lacking,  even  although  each  body  acts  under  a sense 
of  judicial  responsibility. 

The  Convention  of  1899  provided  that  the  panel  should  be 
composed  of  not  more  than  four  persons  nominated  by  each 
Signatory  Power, 

of  recognized  competence  in  questions  of  international  law 
enjoying  the  highest  moral  reputation,  and  disposed  to  accept 
the  duties  of  arbitrator.' 

The  judges  of  the  proposed  Court  of  Arbitral  Justice  were 
likewise  to  be  persons  of  moral  reputation  and  recognized  com- 
petence in  matters  of  international  law.  So  far  the  institu- 
tions have  a point  in  common ; but  the  judicial  nature  of  the 
creation  of  1907  at  once  appears  in  the  further  requirement  that 
the  persons  designated  as  judges  shall  possess  the  qualifica- 
tions required  for  judges  in  the  higher  courts  of  their  respec- 
tive countries,  or  shall  be  jurists  of  recognized  competency. 
We  see,  therefore,  that  the  Conference  of  1907  sought  to  estab- 
lish a Permanent  Court  composed  of  judges  who  either  had 
occupied  judicial  position  or  who  were  qualified  for  it  by  the 
laws  of  their  respective  countries  in  order  that,  acting  under  a 
sense  of  judicial  responsibility,  their  judgments  would  com- 
mand the  respect  alike  of  plaintiff  and  defendant.  The  first 
article  stipulated  that  the  Court  of  Arbitral  Justice  was  to  be 
established  without  striking  a blow  at  the  Permanent  Court 
of  1899.  In  order  to  establish  a connection  between  the  two, 
although  the  two  courts  were  to  be  independent  of  one  another, 
it  was  hoped  that  the  judges  of  the  new  court  should  be 
appointed  as  far  as  possible  from  the  permanent  panel  of  the 

‘ Convention  for  the  pacific  Settlement  of  International  Disputes,  Arti- 
cle 23. 


THE  COUET  OF  AEBITRAL  JUSTICE 


445 


old.  It  was  felt  that  the  nations  would  have  greater  confi- 
dence in  the  new  institution  if  it  were  not  opposed  to  the  crea- 
tion of  1899  but  stood  in  close  relation  to  it. 

The  judge  of  the  permanent  panel  of  1899  was  to  be 
selected  for  a period  of  six  years,  subject  to  reappointment, 
and  in  case  of  death  or  resignation  his  place  was  to  be  filled 
in  accordance  with  the  method  of  his  appointment.  The 
judges  of  the  Court  of  Arbitral  Justice  were  to  be  appointed 
for  a period  of  twelve  years,  counting  from  the  date  on  which 
the  appointment  is  notified  to  the  Administrative  Council, 
and  were  eligible  for  reappointment.  In  case  of  death  or 
withdrawal,  the  vacancy  was  to  be  filled  in  the  manner  of 
the  original  appointments.  The  appointment,  however,  was 
for  the  full  period  of  twelve  years.  A long  period  of  ser- 
vice was  thought  essential  to  the  success  of  the  projected 
court,  for  however  good  a judge  may  be  at  the  date  of  his 
appointment,  experience  on  the  bench  develops  his  faculties 
and  makes  him  more  competent.  Experience  likewise  often 
develops  latent  and  unsuspected  faculties.  The  framers 
of  the  convention  thought  that  six  years — the  tenure  of  the 
judges  of  the  Prize  Court — might  be  too  short  a period  to 
develop  the  full  strength  of  a judge  and,  wishing  the  world 
to  profit  by  the  wisdom,  knowledge,  and  experience  gained 
in  its  service,  fixed  the  period  at  twelve  years.  The  influence 
and  importance  of  this  long  tenure  on  the  development  of 
international  law  and  the  continuity  in  arbitral  jurisprudence 
are  too  obvious  for  comment. 

The  convention  does  not  specify  the  number  of  judges 
necessary  to  constitute  the  court,  but  it  is  evident  that  a judge 
from  each  country  would  form  a body  of  forty-six.  This 
might  be  a judicial  assembly,  but  it  would  certainly  not  be  a 
manageable  court.  On  the  other  hand,  the  requirement  of 
the  first  article,  that  the  court  should  be  composed  of  judges 
representing  the  various  juridical  systems  of  the  world,  would 
suggest  a court  of  approximately  fifteen  persons — certainly 
not  more  than  seventeen.  Eitner  number  would  seem  large 
to  an  American  who  finds  nine  judges  sufficient  to  constitute  a 


446 


THE  HAGUE  PEACE  CONFEHENCES 


Supreme  Court  for  the  forty-six  States  composing  the  Amer- 
ican Union. 

Whatever  be  the  number  of  judges  and  the  manner  of  their 
appointment,  the  judges  are  however  equal  and  rank  accord- 
ing to  the  date  on  which  their  appointment  was  notified,  and 
each  receives  as  judge  of  the  Court  of  Arbitral  Justice  an  annual 
salary  of  6000  Netherland  florins — in  round  numbers,  2400 
American  dollars.  The  projected  court  was  to  be  permanent, 
and  in  order  to  effect  this  purpose  the  judges  must  either  reside 
at  The  Hague  or  be  prepared  to  go  to  The  Hague  so  that  they 
may  decide  the  cases  presented  to  the  court.  It  was  felt  that 
a judge  would  feel  more  bound  to  attend  to  his  duties  if  he 
were  paid  an  adequate  salary,  because  acceptance  of  the  salary 
necessarily  involves  the  duty  of  performance  of  service  for 
which  it  was  received.  The  judge  therefore  is  to  be  a perma- 
nent official  of  the  court,  pledged  by  oath  to  exercise  his  func- 
tions impartially  and  conscientiously,  and  the  recipient  of  a 
annual  salary  during  his  tenure,  to  be  paid  not  by  the  liti- 
gants but  by  the  Signatory  Powers.  It  may  be  admitted  that 
the  sum  of  6000  florins  is  in  itself  inadequate,  but,  on  the  other 
hand,  it  must  be  borne  in  mind  that  the  judge  may  rarely  be 
called  into  service  and  receives  the  stipend  whether  his  court 
have  much  or  nothing  to  do.  To  this  sum  must  be  added 
traveling  expenses,  fixed  in  accordance  with  the  regulations 
in  existence  in  his  own  country,  and  finally  in  the  exercise  of 
his  duty  during  the  session  or  in  special  cases  covered  by  the 
convention  each  judge  receives  the  additional  sum  of  100  florins 
per  diem.  While  it  can  not  be  maintatined  that  the  salary  is 
munificent,  still  6000  florins  annually,  traveling  expenses,  and 
the  additional  compensation  of  100  florins  per  day  when  acting 
as  judge,  are  surely  a sufficient  reward  to  one  whose  sole  purpose 
in  life  is  not  to  amass  wealth,  and  to  whom  dignity,  honor  and 
a consciousness  of  public  usefulness  count  for  something.  It 
should  also  be  said  that  the  position  of  judge  will  probably  not 
interfere  with  professional  engagements  at  home;  for,  while  it 
is  supposed  that  the  court  will  hold  terms,  it  is  not  likely  that 
continuous  actual  presence  in  The  Hague  will  be  required  for 


THE  COURT  OF  ARBITRAL  JUSTICE 


447 


some  years  to  come.  Therefore,  a judge  may  be  engaged  in 
the  practice  of  law,  or  he  may  be  a professor  of  law  in  a Euro- 
pean university  or  he  may  be  an  official  of  government;  but 
as  judge  he  is  an  official  of  the  court  and  may  not  receive  from 
his  government  or  from  that  of  any  power  any  remuneration 
for  service  connected  with  his  duties  in  his  capacity  as  judge 
(Article  10).  For  the  same  reason  he  may  not  exercise  his 
judicial  functions  in  any  case  in  which  he  has  in  any  way 
whatever  taken  part  in  the  decision  of  a national  tribunal,  of  a 
tribunal  of  arbitration,  or  of  a commission  of  inquiry,  or  has 
figured  in  the  suit  as  counsel  or  advocate  for  one  of  the  parties; 
nor  can  he  act  as  agent  or  advocate  before  the  Court  of  Arbitral 
Justice  or  the  Permanent  Court  of  Arbitration,  before  a special 
tribunal  of  arbitration,  or  a commission  of  inquiry;  nor  can  he 
act  for  any  of  the  parties  in  any  capacity  whatsoever  so  long 
as  his  appointment  lasts  (Article  7).  The  judge,  therefore, 
of  the  proposed  Court  of  Arbitral  Justice  is  to  be  a judge  in 
the  technical  sense  of  the  word,  whose  chief  and  sole  duty  is  to 
the  court  of  which  he  has  the  honor  to  be  a member;  who  looks 
to  his  home  country  neither  with  fear  nor  favor,  for  it  dare  not 
reward  him  financially;  and  who,  by  the  very  nature  of  the 
position,  is  forbidden  to  appear  or  serve  in  any  capacity  other 
than  judge  in  any  tribunal  constituted  or  recognized  by  the 
convention.  If  we  compare  the  like  provision  of  the  Perma- 
nent Court,  we  see  at  once  that  the  Court  of  Arbitration  is  not 
considered  a court  in  the  strict  sense  of  the  word,  because  the 
members  of  the  Permanent  Court  may  act  as  agent,  counsel, 
of  advocate  on  behalf  of  the  power  which  appointed  them  or 
of  which  they  are  subjects  or  citizens,  although  they  are  for- 
bidden so  to  act  for  any  other  power.  In  the  next  place  they 
receive  their  honorarium  as  arbiters  directly  from  the  parties, 
and  rightly,  because  they  are  servants  of  the  parties  and  are 
properly  remunerated  by  them.  The  judges  of  the  proposed 
Court  of  Arbitral  Justice  are  officers  of  the  court,  and  although 
they  do  not  lose  their  citizenship  by  virtue  of  their  appoint- 
ment, still  for  the  purposes  of  justice  they  are  officers  of  the 
community  of  nations. 


448 


THE  HAGUE  PEACE  CONFERENCES 


It  has  been  stated  that  the  court  contemplated  by  the  con- 
vention is  to  consist  of  a sufficient  number  of  judges  to  repre- 
sent the  various  juridical  systems  of  the  world  and  capable  of 
insuring  continuity  in  jurisprudence  of  arbitration.  This 
court,  which  we  shall  suppose  to  be  composed  of  approxi- 
mately fifteen  judges,  is  to  meet  in  session  at  The  Hague  once 
a year  and  is  to  remain  in  session  until  all  the  business  pre- 
sented to  its  consideration  has  been  transacted.  But  the  desire 
of  the  framers  of  the  convention  was  not  merely  to  propose  a 
court  which  would  meet  once  a year,  but  to  establish  a court 
that  would  be  permanently  in  session  at  The  Hague  in  order 
that  it  might  receive  cases  and  judge  them  without  the  delay 
incident  to  the  appointment  and  assembling  of  judges.  There- 
fore, it  was  provided  that  the  large  court,  which  was  to  meet 
once  a year,  should  nominate  annually  from  its  members 
three  judges  to  form  a special  delegation  and  three  deputies 
to  replace  them  should  the  necessity  arise.  The  large  court, 
therefore,  is  authorized — indeed  required — to  appoint  a judi- 
cial committee  to  which  may  be  referred  cases  permitting 
summary  procedure,  and  the  delegation  is  likewise  competent 
to  act  as  a commission  of  inquiry.  The  idea  of  a small  com- 
mittee within  the  larger  court  was  suggested  by  the  Russian 
proposal,  previously  described,  and  the  presence  of  this  judi- 
cial committee  at  The  Hague,  not  merely  ready  but  anxious 
to  decide  controversies  submitted  to  them,  offers  to  the  nations 
of  the  world  a simple  remedy  and  adequate  means  for  the  judi- 
cial settlement  of  any  controversy  susceptible  of  judicial  settle- 
ment. Through  the  effort  of  the  French  delegation  in  1899, 
Article  27  of  the  convention  for  the  pacific  settlement  of  inter- 
national disputes,  provided  that  strangers  to  a controversy 
might  suggest  to  the  parties  in  conflict  recourse  to  the 
Permanent  Court.  The  adoption  of  this  convention  would 
give  practical  effect  to  this  article  by  providing  permanent 
judges  at  The  Hague  to  whom  the  parties  in  controversy  might 
be  referred.  A reason  not  already  mentioned  for  the  com- 
paratively large  number  of  judges  in  the  general  court  is  that 
each  additional  judge  is  a guaranty  of  impartiality.  The  judi- 


THE  COUET  OF  AEBITRAL  JUSTICE 


449 


cial  committee  consisting  of  three  should  be  by  its  composi- 
tion saved  from  the  suspicion  of  partiality.  Therefore,  it  is 
provided  that  the  member  of  the  delegation  can  not  exercise 
his  duties  when  the  power  which  appointed  him  or  of  which 
he  is  a national  is  one  of  the  parties. 

To  return  to  the  court  itself.  Although  the  project  requires 
that  the  court  shall  meet  in  session  once  a year,  it  was  not 
meant  that  the  judges  of  the  court  should  go  to  The  Hague 
unless  the  docket  of  the  court  would  justify  it.  Therefore, 
it  is  provided  that  the  court  shall  not  meet  in  session  if  the 
delegation  considers  that  such  meeting  is  unnecessary  ; for  it 
may  be  that  the  judicial  committee  is  competent  to  transact 
the  business  and  that  there  are  no  cases  on  the  docket  for 
the  consideration  of  the  court.  Lest,  however,  the  judicial 
committee  should  endeavor  to  perpetuate  itself  and,  from 
selfish  motives,  be  led  to  adjourn  the  meeting  of  the  court,  it 
is  provided  (Article  14)  that  the  court  shall  be  convened  upon 
the  request  of  a Power,  party  to  a case  actually  pending  before 
the  court,  the  pleadings  in  which  are  closed  or  which  are  about 
to  be  closed.  The  discretion  therefore  lodged  in  the  delega- 
tion is  subject  not  merely  to  the  supervision  but  to  the  control 
of  the  powers  in  litigation.  It  may  happen,  however,  that 
a case  presented  to  the  delegation  is  of  such  fundamental 
importance  that  this  smaller  body  does  not  feel  justified  in 
deciding  it.  Therefore,  it  is  provided  that  the  delegation  may, 
in  case  of  necessity,  summon  the  court  in  extraordinary  session. 
The  foundation,  therefore,  is  laid  for  a court  which  is  to  meet 
annually  if  the  business  before  it  justifies  a session.  A judi- 
cial committee  is  to  be  selected  annually  by  the  court,  by 
ballot  if  in  session  at  The  Hague  or  by  mail  if  not  so  in  session. 
The  judicial  committee  is  permanently  in  session  at  The  Hague 
to  undertake  any  and  all  business  presented  to  it  by  agree- 
ment of  the  Powers.  It  is  further  provided  in  the  interests 
of  the  litigants  that  the  members  of  the  delegation  are  to  com- 
plete all  matters  submitted  to  them,  even  if  the  period  has 
expired  for  which  they  have  been  appointed  judges. 

As  the  court  thus  outlined  is  to  be  the  court  of  the  contract- 


I 


450  THE  HAGUE  PEACE  CONFERENCES 

ing  nations,  it  is  very  necessary  that  its  proceedings  be  known 
to  the  nations.  Therefore,  it  is  provided  that  a report  of  the 
proceedings  shall  be  drawn  up  every  year  by  the  delegation 
and  forwarded  by  the  International  Bureau  to  the  contracting 
powers.  In  this  way  the  proceedings  of  the  court  are  forced 
upon  the  attention  of  the  Signatory  Powers  and  they  are  thus 
in  a position  to  appreciate  the  importance  of  its  labors  and  to 
exercise  general  control  and  supervision. 

Passing,  now,  from  the  organization  of  the  court,  let  us  con- 
sider its  jurisdiction  and  procedure.  The  jurisdiction  of  the 
court  is  purposely  very  large,  because  it  is  hoped  that  it  will 
draw  to  itself  all  controversies  between  nations  susceptible  of 
judicial  settlement.  The  court  should  be  empowered  to  con- 
sider all  such  questions  submitted,  but  such  questions  will  not 
be  presented  unless  the  judgments  of  the  court  not  only 
win  but  merit  universal  approval.  The  Court  of  Arbitral  Jus- 
tice is  therefore  declared  competent  to  deal  with  all  cases  sub- 
mitted to  it  in  virtue  either  of  a general  undertaking  to  have 
recourse  to  arbitration,  or  of  a special  agreement.  The  orig- 
inal draft  of  this  article  was  divided  into  three  paragraphs  by 
virtue  of  which  the  court  was  declared  to  be  competent : 

1.  For  all  cases  of  arbitration  which  by  virtue  of  a general 
treaty  concluded  before  the  ratification  of  this  convention  may 
be  submitted  to  the  Permanent  Court  of  Arbitration,  unless  one 
of  the  parties  opposes;  2,  for  all  cases  of  arbitration  which  by 
virtue  of  a general  treaty  or  special  agreement  may  be  brought 
before  it;  3,  [upon  the  proposal  of  Germany  and  the  United 
States]  for  the  revision  of  awards  of  tribunals  of  arbitration  and 
reports  of  commissions  of  inquiry,  as  well  as  for  the  determina- 
tion of  the  rights  and  duties  which  arise  therefrom  in  all  cases 
in  which  the  parties  apply  to  the  court  for  this  purpose  by  virtue 
of  a general  treaty  or  special  agreement. 

The  purpose  of  the  original  draft  was  to  invest  the  Court 
of  Arbitral  Justice  with  the  functions  of  a court  of  appeal,  pro- 
vided parties  in  litigation  chose  to  make  use  of  its  services, 
and  that  there  might  be  no  misunderstanding  in  the  matter 
the  German-American  draft  clothed  it  specifically  with  this 
character.  It  was  thought  advisable  to  point  out  the  possibil- 


THE  COURT  OF  ARBITRAL  JUSTICE 


451 


ity  of  revision,  although  merely  stating  that  it  might  be  used 
for  such  a purpose  did  not  in  any  way  bind  the  nations  to  use 
it  for  such.  The  presence,  however,  of  the  clause  might  sug- 
gest a resort  to  the  court  for  the  purposes  of  revision  by  the 
mere  statement  of  the  competency  of  the  court.  Its  presence 
therefore  called  attention  to  its  possibility,  and  b)'’  so  doing 
exerted  a slight  moral  pressure.  The  Committee  of  Examina- 
tion, however,  did  not  share  the  views  of  the  German  and 
American  delegation  as  to  the  advisability  of  retaining  the 
clause,  although  it  was  specifically  admitted  and  stated  to  be 
the  understanding  of  the  committee  that  the  court  might 
be  used  for  the  purposes  specified  in  the  rejected  clause  by 
virtue  of  a special  accord. 

The  judges  of  the  court  are  declared  competent  to  exercise 
the  functions  of  judge  in  the  International  Prize  Court,  and  it 
is  not  too  much  to  hope  that  some  day,  either  by  the  appoint- 
ment of  the  same  judges  for  both  courts  or  by  a reorganization, 
there  may  be  one  great  international  court  of  justice  with  a 
twofold  division  into  civil  and  prize  chambers. 

Passing,  now,  to  the  delegation,  it  appears  that  this  latter 
body  is  competent  to  settle  the  comproviis  referred  to  in 
Article  52  of  the  revised  convention  for  the  pacific  settlement 
of  international  disputes  if  the  parties  are  agreed  to  leave  its 
formulation  to  the  court.  There  can  be  no  objection  to  this, 
because  the  delegation  does  not  act  upon  its  own  initiative, 
but  solely  by  the  agreement  of  the  parties  in  interest.  The  fact 
that  they  are  strangers  to  the  controversy  and  are  not  affected 
by  its  failure  or  success  makes  their  cooperation  disinterested 
and  therefore  acceptable. 

Another  function  of  the  judicial  committee  was  the  subject 
of  much  discussion  at  the  Conference,  namely,  the  provision  of 
Article  19  of  the  project  declaring  the  delegation  competent 
to  settle  the  compromis 

even  when  the  request  is  only  made  by  one  of  the  parties  con- 
cerned, if  all  attempts  have  failed  to-  reach  an  understanding 
through  the  diplomatic  channel,  in  the  case  of — 


452 


THE  HAGUE  PEACE  CONFERENCES 


1.  A dispute  covered  by  a general  treaty  of  arbitration  con- 
cluded or  renewed  after  the  present  Convention  has  come  into 
force,  providing  for  a compromis  in  all  disputes  and  not  either 
explicitly  or  implicitly  excluding  the  settlement  of  the  compro- 
mis from  the  competence  of  the  delegation.  Recourse  can  not, 
however,  be  had  to  the  court  if  the  other  party  declares  that 
in  its  opinion  the  dispute  does  not  belong  to  the  category  of 
questions  to  be  submitted  to  compulsory  arbitration,  unless 
the  treaty  of  arbitration  confers  upon  the  Arbitration  Tribunal 
the  power  of  deciding  this  preliminary  question. 

2.  A dispute  arising  from  contract  debts  claimed  from  one 
power  by  another  power  as  due  to  its  nationals,  and  for  the 
settlement  of  which  the  offer  of  arbitration  has  been  accepted. 
This  arrangement  is  not  applicable  if  acceptance  is  subject  to 
the  condition  that  the  compromis  should  be  settled  in  some 
other  way. 

As  this  clause  appears  in  substantially  the  same  form  as 
Article  53  of  the  convention  for  the  pacific  settlement  of  inter- 
national differences,  and  as  it  has  been  amply  considered,  I 
do  not  again  discuss  it  at  length  or  in  detail.  It  may  be 
pointed  out,  however,  that  the  delegation  is  only  competent  to 
settle  the  compromis  arising  under  a treaty  of  arbitration 
concluded  or  renewed  after  the  ratification  of  the  convention. 
Its  effect,  then,  is  prospective,  not  retroactive,  and  it  can  only 
settle  the  compromis  if  the  treaty  of  arbitration  does  not  either 
explicitly  or  implicitly  exclude  the  settlement  of  the  compromis 
from  the  competence  of  the  delegation.  Nations  may  either 
frame  their  own  compromis  or  permit  its  formulation  by  the 
court  or  its  delegation.  In  other  words,  the  contracting 
powers  may  exclude  in  express  terms  the  competence  of  the 
delegation,  or  may  impliedly  exclude  the  delegation  by  provid- 
ing another  or  inconsistent  means  of  settling  the  compromis. 
For  example,  in  the  treaties  of  arbitration  recently  concluded 
by  the  United  States,  it  is  provided  that 

such  special  agreements  (compromis)  on  the  part  of  the  United 
States,  will  be  made  by  the  President  of  the  United  States,  by 
and  with  the  advice  and  consent  of  the  Senate  thereof. 

The  competence  of  the  court  or  its  delegation  is  thus  specifically 
excluded  by  the  United  States.  It  should  be  also  noted  that 
the  competence  of  the  delegation  is  further  limited  if  the 


THE  COURT  OF  ARBITRAL  JUSTICE 


453 


other  party  declares  that  the  dispute  does  not  belong  to  com- 
pulsory arbitration,  unless  the  treaty  of  arbitration  itself  confers 
upon  the  arbitral  tribunal  the  power  of  deciding  this  pre- 
liminary question.  It  is  difficult  to  see  how  this  article,  thus 
safeguarded,  can  be  other  than  helpful  to  parties  in  litigation. 
If  they  are  unwilling  to  intrust  the  court  or  its  delegation  with 
the  formulation  of  the  compromis,  they  may  exclude  it.  If  they 
have  not  excluded  the  competency  of  the  court,  either  directly 
or  impliedly,  the  fact  that  the  court  may  assume  jurisdiction, 
upon  demand  of  one  of  the  parties  to  the  conflict,  will  exert  no 
little  pressure  upon  the  unwilling  party  to  secure  a compromis 
by  negotiation  rather  than  by  judicial  decision.  If  nation 
could  sue  nation  by  filing  with  the  court  a complaint  there 
would  be  no  necessity  for  a compromis.  But  the  competence 
of  the  court  or  its  delegation  to  frame  the  compromis,  upon  the 
request  of  one  litigant  when  a treaty  of  arbitration  exists 
between  the  litigants  binding  them  to  arbitrate,  seems  to  be 
a long  step  toward  introducing  into  the  law  of  nations  the 
procedure  of  a common-law  court  by  which  a defendant  may 
be  brought  into  court  at  the  instance  of  a plaintiff. 

Section  number  2 of  the  article  in  question  is  intimately 
connected  with  the  convention  for  the  hmitation  of  the  use 
of  force  in  the  collection  of  contract  debts.  It  will  be  recalled 
that  the  renunciation  of  force  is  conditioned  upon  arbitration, 
but  it  may  well  be  that  the  parties  in  controversy  agree 
to  arbitrate  but  that  either  creditor  or  debtor  may  delay 
framing  the  compromis.  If  the  compromis  be  not  framed  the 
agreement  to  arbitrate  is  worthless;  if  either  party  possesses 
the  right  to  delay  its  framing,  it  may  never  be  framed  and  the 
agreement  to  arbitrate  becomes  a dead  letter.  In  order  not 
merely  to  enable  but  to  force  a party  agreeing  to  arbitrate  to 
formulate  the  compromis,  the  delegation  is  made  competent  to 
do  so  upon  the  demand  of  either  party,  unless  the  acceptance 
of  arbitration  is  subject  to  the  condition  that  the  compromis 
should  be  settled  in  some  other  way.  The  procedure  is  thus 
wholly  voluntary,  for  the  intervention  of  the  court  or  its  dele- 
gation depends  solely  upon  the  parties  who  may  directly  or 


454 


THE  HAGUE  PEACE  CONFERENCES 


indirectly  exclude  the  competence  of  court  and  delegation 
alike. 

It  has  been  stated  that  the  delegation  may  sit  as  a court 
administering  summaiy  procedure,  in  accordance  with  the  con- 
vention for  the  pacific  settlement  of  international  disputes, 
and  that  it  may  exercise  the  functions  of  a commission  of 
inquiry  as  created  under  the  same  convention.  The  commis- 
sion of  inquiry  is  not  a court;  it  finds  facts — it  does  not  declare 
nor  does  it  apply  law.  For  this  reason,  with  the  assent  of 
the  parties  concerned,  the  members  of  the  delegation  who  have 
taken  part  in  the  inquiry  may  sit  as  judges  if  the  case  in 
dispute  is  submitted  to  the  arbitration  of  the  court  or  the 
delegation  itself.  (Article  18.)  If  the  judicial  committee  com- 
posed of  three  members  be  considered  too  small  a body,  each 
of  the  parties  concerned  in  litigation  may  nominate  a judge  of 
the  court  to  take  part  with  power  to  vote  in  the  examination  of 
the  case  submitted,  and  if  the  delegation  is  acting  as  a commis- 
sion of  inquiry,  each  party  litigant  may  add  a person  chosen 
outside  of  the  court.  This  privilege  is  not  inconsistent  with 
the  provisions  of  the  convention,  because,  as  previously  stated, 
the  commission  of  inquiry  finds  facts:  it  does  not  deliver  judg- 
ments. It  should  be  clearly  understood,  however,  that  if 
the  delegation  sit  as  a law  court  none  of  its  members  can  be 
citizens  or  subjects  of  the  parties  in  controversy. 

The  intention  of  the  framers  of  the  project  was  to  provide  a 
court  of  broad  jurisdiction,  to  appoint  competent  judges, 
ready  and  willing  to  take  up  their  residence,  if  need  be,  at  The 
Hague,  and  to  designate  a small  judicial  committee  always 
in  session  at  The  Hague  for  the  trial  of  cases.  By  permitting 
the  delegation  or  its  members  to  act  as  a commission  or  com- 
missioners of  inquiry,  it  was  expected  to  enlarge  the  usefulness 
of  the  judges,  and  if  the  contracting  powers  are  impressed  by 
the  impartiality  and  ability  of  the  court  as  a whole,  of  its  judi- 
cial committee,  and  of  the  individual  judges  composing  the 
court,  the  court  and  the  delegation  will  doubtless  have  cases 
to  decide,  and  the  individual  judges  may  be  detailed  to  sit  on 
special  commissions  or  tribunals  of  arbitration  at  the  request 


THE  COUHT  OP  ARBITRAL  JUSTICE 


455 


of  the  nations  without  involving  extra  expense.  It  should  be 
noted  that  the  Court  of  Arbitral  Justice  is  limited  to  the  con- 
tracting powers.  The  Court  of  Arbitration  of  1899  was  open 
to  nonsignatory  Powers  if  the  parties  agree  to  submit  to  its 
jurisdiction.  (Article  26.)  The  reason  for  the  difference  is  two- 
fold: (1)  Financial,  for  the  Court  of  Arbitral  Justice  is  a court 
organized  and  supported  by  the  Contracting  Powers,  and  there 
seems  to  be  no  sufficient  reason  why  these  Contracting  Powers 
should  contribute  judges  for  those  who  are  unwilling  to  assume 
their  share  of  the  burden;  (2)  that  the  Contracting  Powers  did 
not  wish  to  interfere  with  the  Permanent  Court  of  Arbitration 
by  furnishing  a tribunal  free  of  expense  to  litigants. 

The  remaining  provisions  of  the  project  concern  matters  of 
procedure  and,  although  interesting,  are  not  fundamental. 
Without  going  into  details,  it  may  be  said  that  the  Court  of 
Arbitral  Justice  is  to  follow  the  rules  of  procedure  of  the  conven- 
tion for  the  pacific  settlement  of  international  disputes,  where 
applicable  (Article  22) ; that  the  court  determines  what  lan- 
guage it  will  itself  use  and  what  languages  may  be  used  before 
it  (Article  23) ; that  the  International  Bureau  serves  as  channel 
for  all  communications  to  be  made  to  the  judges  during  the 
interchange  of  pleadings  provided  for  in  Article  63,  Paragraph 
2,  of  the  convention  for  the  pacific  settlement  of  international 
disputes  (Article  24) ; that  the  discussions  are  under  the  control 
of  the  president  or  vice-president,  freely  elected  by  the  court 
(Article  26) ; that  the  court  considers  its  decisions  in  private 
and  the  proceedings  are  secret;  that  the  decisions  are  reached 
by  a majority  of  the  judges  present  (Article  27) ; that  the  judg- 
ment of  the  court  must  give  the  reasons  on  which  it  is  based 
and  contain  the  names  of  the  judges  taking  part  in  it  and  be 
signed  by  the  president  and  registrar  (Article  28) ; that  each 
party  pays  its  own  costs  and  an  equal  part  of  the  cost  of  the 
trial  as  in  an  ordinary  law  suit  (Article  29) ; that  the  expenses 
of  the  court,  as  distinct  from  the  expenses  of  the  parties,  are 
borne  by  the  Contracting  Powers  (Article  31) ; that  the  court 
draws  up  its  own  rules  of  procedure,  which  must  be  communi- 
cated to  the  contracting  parties;  and  that  after  ratifies. 


456 


THE  HAGUE  PEACE  CONFERENCES 


tion  of  the  present  convention  the  court  shall  meet  as  early  as 
possible  in  order  to  elaborate  these  rules,  elect  the  president 
and  vice-president,  appoint  the  members  of  the  delegation 
(Article  32) ; and,  finally,  that  the  court  may  propose  modifica- 
tions in  the  provisions  of  the  present  convention  concerning 
procedure,  but  that  such  proposals  are  communicated  through 
the  Netherland  Government  to  the  contracting  powers  for 
their  determination.  (Article  33.) 

The  foundation  for  a court  of  arbitral  justice  is  thus  laid. 
The  organic  act  consisting  of  its  organization,  jurisdiction,  and 
procedure  was  approved  by  the  Conference  and  recommended 
for  adoption  by  the  Powers  generally.  But  the  conference 
was  unable  to  devise  in  the  short  time  at  its  disposal  an  accept- 
able plan  for  the  appointment  of  judges. 

The  Conference  is,  however,  not  to  be  criticised  for  failing  to 
produce  a satisfactory  solution  of  the  difficulty;  for  no  accept- 
able solution  of  the  problem  has  been  yet  proposed  by  the  wit 
and  ingenuity  of  man.  The  difficulty  inherent  in  the  problem 
is  that  States  are  regarded  in  diplomatic  assemblies  as  equals 
and  treated  as  such.  The  doctrine  of  juridical  equality  has 
been  proclaimed  from  the  days  of  Grotius  to  the  present  day, 
and  doubtless  has  been  of  very  great  service  to  protect  the 
weak  against  the  aggression  of  the  strong.  But  we  can  not 
overlook  the  fact,  that  although  legally  equal,  the  great  masses 
of  population  within  State  lines  possess  influence  which  the 
smaller  and  less  populous  States  do  not  have,  and  which  in  the 
business  of  life  they  do  not  claim.  If  there  were  but  fifteen 
States  in  the  world  or  if  the  Powers  of  the  world  were  willing 
to  pick  out  fifteen  and  entrust  them  with  the  formation  of  the 
court,  there  would  be  no  difficulty  in  finding  fifteen  judges 
adequately  qualified  for  developing  and  interpreting  the  law  of 
nations.  But  the  small  State  is  as  tenacious  of  its  right  as  the 
large  State,  and  as  the  large  States  each  wish  a judge,  the  small 
States  would  not  be  content  with  less.  The  result  is  that  we 
can  easily  form  a court  of  forty-six  judges,  but,  as  previously 
stated,  such  a body  would  be  a judicial  assembly,  not  a court. 
It  seems  that  a court  could  not  be  composed  of  more  than 


THE  COURT  OP  ARBITRAL  JUSTICE 


457 


fifteen  or  seventeen  members  without  becoming  unwieldly. 
How  shall  we  reduce  forty-six  to  seventeen? 

Three  methods,  it  may  be  said,  were  proposed:  First,  the 
system  of  rotation;  second,  the  system  of  absolute  and  rigid 
equality;  and,  thirdly,  the  system  of  election.  Of  each  of 
these  in  turn. 

The  framers  of  the  project  admitted  freely  the  principle  of 
the  juridical  equality  of  States,  but  maintained  that  the 
usage  made  of  the  court  would  naturally  be  proportioned  to 
population,  industry  and  commerce.  They  therefore  pro- 
posed a court  of  seventeen  judges.  It  was  thought  possible 
to  reconcile  the  principle  of  juridical  equality  with  the  actual 
facts  of  daily  life,  by  recognizing  that  each  State,  be  it  never 
so  small,  had  the  right  to  appoint  a judge  for  the  full  period  of 
the  convention,  namely,  twelve  years;  but  that  the  judges 
should  sit  for  a longer  or  shorter  period  determined  by  the  pop- 
ulation, industry  and  commerce  of  the  appointing  countries. 
In  this  way  the  smallest  States,  such  as  Montenegro  and  Luxem- 
burg, would  be  entitled  to  appoint  judges  for  the  full  period  of 
twelve  years,  although  they  would  be  called  upon  to  sit  for 
but  one  year  out  of  the  twelve.  Certain  larger  States  should 
sit  for  a period  of  two  years ; others  for  a period  of  four  years ; 
one  for  a period  of  ten  years;  and  eight — namely,  Germany, 
Austria-Hungary,  United  States,  France,  Great  Britain,  Italy, 
Japan  and  Russia — for  the  full  period  of  twelve  years. ‘ By 
this  method,  which  it  was  hoped  would  either  prove  acceptable 
in  itself  or  might  be  modified  so  as  to  meet  general  approval, 
each  State  represented  at  the  Conference  would  appoint  a 
judge  for  the  full  period  to  serve  by  a system  of  rotation  con- 
ditioned upon  population,  industry  and  commerce.  It  was 
felt  that  the  continued  presence  of  judges  from  the  eight  States 
just  enumerated  would  supply  the  court  with  a permanent 
nucleus  of  trained  judges  representing  the  different  nations, 
the  different  systems  of  law,  the  different  languages,  and  cap- 
able of  guaranteeing  the  continuity  of  arbitral  jurisprudence. 

* For  the  suggested  composition  of  the  Court  of  Arbitral  Justice  by  the 
system  of  rotation,  see  Appendix  II,  pp.  818-820. 


458 


THE  HAGUE  PEACE  CONFERENCES 


Without  entering  further  into  details,  it  may  be  said  that 
this  system  of  rotation  was  objectionable  to  many  of  the 
delegates  represented  at  the  Conference,  although  it  is  practi- 
cally identical  with  the  system  of  rotation  proposed  and 
accepted  for  the  constitution  of  the  Court  of  Prize.  Subtle 
distinctions  were  drawn  between  the  two  courts,  it  being 
stated  that  the  larger  nations  were  more  likely  to  go  to  war; 
that  their  interests  either  as  belligerents  or  neutrals  were 
greater  than  those  of  the  small  States;  that  in  submitting  the 
validity  of  their  actions  to  a court  composed  of  neutrals,  the 
larger  States  conferred  such  a benefit  upon  neutrals  as  to 
compensate  any  particular  neutral  for  inadequate  representa- 
tion, and  that,  therefore,  the  larger  States  were  entitled  to 
permanent  representation  in  the  Prize  Court. 

This  argument  is  certainly  correct,  but  it  involves  a distinc- 
tion between  large  and  small  Powers  based  not  merely  upon 
population,  industry,  and  commerce,  but  upon  the  naval 
strength  of  each  contracting  party.  The  most  that  can  be  said 
is  that  the  smaller  States  were  willing  to  be  classified  for  pur- 
poses of  claims  arising  out  of  war,  but  were  unwilling  to  be 
classified  for  claims  arising  out  of  peace  which  if  unsettled 
might  produce  war.  As  this  system  will  be  described  in  con- 
sidering the  Prize  Court  it  is  unnecessary  to  discuss  it  here  at 
greater  length. 

The  system  of  absolute  and  rigid  equality  in  the  right  as  well 
as  its  exercise  was  proposed  by  Brazil,  and  may  be  summed 
up  in  the  formula : as  many  judges  as  there  are  States.  Accord- 
ing to  this  system,  which  has  been  explained  previously,  the 
court  would  be  composed  of  forty-six  judges  divided  by 
order  of  the  alphabet  into  three  groups,  each  group  to  sit  by 
rotation  during  a period  of  three  years.  This  system  was  not 
considered  by  the  Committee  of  Examination,  and  it  was 
withdrawn  by  its  proposer,  Mr.  Barbosa,  who  was  not  in  favor 
of  the  establishment  of  a court  of  arbitral  justice;  for  he 
believed  that  the  system  of  arbitration  adopted  in  1899  was 
sufficient  for  all  international  needs;  that  a court  of  justice 
implying  subordination  was  inconsistent  with  the  sovereignty 


THE  COURT  OF  ARBITRAL  JUSTICE 


459 


of  nations;  that  a court  of  arbitration  composed  of  judges  of 
one’s  own  choice  was  the  only  system  compatible  with  sover- 
eignty. He  doubtless  proposed  this  plan  for  the  considera- 
tion of  the  committee  in  order  that  his  attitude  might  not  be 
considered  as  wholly  negative,  and  to  illustrate  by  a concrete 
example  the  kind  of  court  consistent  with  the  unimpaired 
equality  of  nations  and  the  exercise  of  sovereignty. 

The  third  method,  based  upon  juridical  equality  of  the 
States,  both  in  theory  and  practice,  was  the  system  of  election 
proposed  by  the  American  delegation  in  order  to  meet  the  ob- 
jection made  to  the  system  of  rotation  as  based  upon  inequal- 
ity rather  than  upon  the  equality  of  nations.  This  system  was 
remarkably  clear,  simple,  and  might  well  have  been  adopted; 
for  it  permitted  each  State  to  participate  in  the  election  and 
it  gave  to  each  State  an  equal  influence  in  the  appointment  of 
the  judges.  Each  State  was  to  select  a person  willing  to  act 
and  capable  of  performing  judicial  duties.  The  name  of  this 
person  was  to  be  communicated  to  the  International  Bureau, 
which  thereupon  made  a list  of  the  persons  so  designated  by 
the  forty-six  States.  The  list  was  to  be  transmitted  to  the 
minister  of  foreign  affairs  of  each  country,  with  the  request  that 
he  check  the  names  of  fifteen  persons,  supposing  the  court  was 
to  be  composed  of  fifteen,  best  qualified  to  constitute  the  court. 
The  papers  were  to  be  returned  to  the  International  Bureau 
and  the  fifteen  persons  receiving  the  highest  number  of  votes 
were  to  form  the  court  for  the  period  of  twelve  years.  It  is 
difficult  to  see  wherein  this  system  failed  to  satisfy  the  require- 
ment of  equality  or  sovereignty;  for  equality  was  recognized 
in  every  step  in  the  procedure  and  the  election  itself  was  the 
exercise  of  sovereignty.  This  system  of  selection  and  election, 
however,  was  displeasing  to  the  larger  Powers,  who  feared  the 
results  of  combination,  and  it  was  curiously  unacceptable  to 
the  smaller  powers,  who  may  have  felt  that  the  election  would 
be  conducted  under  pressure  from  the  larger  Powers. 

The  fate  of  the  project  trembled  in  the  balance,  because,  if 
its  acceptance  or  rejection  depended  solely  upon  an  acceptable 
method  of  constituting  the  court,  it  was  evident  that  the  result 


460 


THE  HAGUE  PEACE  CONFERENCES 


of  weeks  and  months  of  labor  would  be  lost.  Therefore,  it  was 
decided  to  accept  the  project  as  it  stood,  to  recommend  its 
adoption,  and  to  defer  the  establishment  of  the  court  until  the 
Powers  should  agree  upon  a method  of  appointing  the  judges. 
A great  result  was  thus  achieved;  for  the  Conference,  with  the 
exception  of  Switzerland,  accepted  unanimously  the  principle 
of  a Permanent  Court  composed  of  judges  representing  the 
various  juridical  systems  of  the  world  and  capable  of  insuring 
the  continuity  of  arbitral  jurisprudence.  From  the  little  com- 
mittee room  in  The  Hague  the  duty  of  devising  an  accept- 
able plan  was  transferred  to  the  Powers  at  large,  in  the  hope 
and  belief  that  the  wit  and  ingenuity  of  the  foreign  office  would 
overcome  a difficulty  which,  while  formidable,  is  far  from 
insuperable. 

It  is  therefore  abundantly  clear,  to  quote  the  apt  and 
measured  language  of  the  President  in  his  recent  message  to 
Congress,  that: 

Substantial  progress  was  made  towards  the  creation  of  a 
Permanent  Judicial  Tribunal  for  the  determination  of  interna- 
tional causes.  There  was  very  full  discussion  of  the  proposal 
for  such  a court  and  a general  agreement  was  finally  reached 
in  favor  of  its  creation.  The  Conference  recommended  to  the 
Signatory  Powers  the  adoption  of  a draft  upon  which  it  agreed 
for  the  organization  of  the  court,  leaving  to  be  determined  only 
the  method  by  which  the  judges  should  be  selected.  This 
remaining  unsettled  question  is  plainly  one  which  time  and  good 
temper  will  solve. 


5.  The  American  Court  of  Arbitration  Under  the 
Articles  of  Confederation 

It  has  been  stated  that  private  arbitration  was  one  of  the 
first  steps  in  the  development  of  the  judicial  system  of  Rome, 
and  it  was  suggested  that  the  forces  at  work  in  the  interna- 
tional world  will  result  in  the  establishment  of  an  interna- 
tional court,  permanent  in  nature  and  judicial  in  composi- 
tion. 

The  insufficiency  of  a temporary  tribunal  for  the  settlement 
of  disputes  between  independent  States  united  by  a loose  feder- 


THE  COUKT  OP  ARBITBAL  JUSTICE 


461 


ation  is  shown  by  the  experience  of  the  United  States.  The 
importance  of  the  problem  as  well  as  the  interest  of  the  subject 
to  the  American  public  amply  justifies  a brief  exposition. 

The  ninth  article  of  the  Articles  of  Confederation  provided 
that  if  the  agents  of  the  States  in  controversy  failed  to  agree — 

Congress  shall  name  three  persons  out  of  each  of  the  United 
States,  and  from  the  list  of  such  persons  each  party  shall  alter- 
nately strike  out  one,  the  petitioners  beginning,  until  the  num- 
ber shall  be  reduced  to  thirteen;  and  from  that  number  not 
less  than  seven,  nor  more  than  nine  names,  as  Congress  shall 
direct,  shall,  in  the  presence  of  Congress  be  drawn  out  by  lot,  and 
the  persons  whose  names  shall  be  so  drawn,  or  any  five  of  them, 
shall  be  commissioners  or  judges,  to  hear  and  finally  determine 
the  controversy,  so  always  as  a major  part  of  the  judges  who 
shall  hear  the  cause  shall  agree  in  the  determination. 

Omitting  the  controversy  between  New  York,  New  Hamp- 
shire and  Massachusetts  on  the  one  hand  and  Vermont  on 
the  other,  in  which  a court  was  petitioned  but  not  appointed, 
and  a controversy  between  Pennsylvania  and  Virginia,  com- 
promised and  settled  out  of  Congress,  it  appears  that  the  case  of 
Pennsylvania  v.  Connecticut  was  the  one  case  actually  tried 
and  determined  by  a commission  appointed  under  Article  9 
of  the  Articles  of  Confederation.  The  controversy  between  the 
two  States,  arising  from  conflicting  charters,  was  long  and 
bitter  and  lives  were  lost  on  both  sides.  Connecticut  claimed 
the  Wyoming  Valley,  now  the  county  of  Luzerne  in  Pennsyl- 
vania, under  its  charter,  whereas  Pennsylvania  claimed  the 
same  territory  under  Penn’s  charter.  As  the  result  of  the 
inability  to  agree,  Pennsylvania  on  November  3,  1781,  prayed 
“a  hearing  in  the  premises,  agreeably  to  the  ninth  article  of 
the  Confederation”  (ratified  on  March  1,  1781).  At  a subse- 
quent date  the  agents  of  Pennsylvania  appeared  before  Con- 
gress, November  14,  1781,  and  after  some  delay  and  opposi- 
tion on  the  part  of  Connecticut  a court  of  seven  persons,  of 
whom  any  five  could  act,  was  agreed  to,  which  court  in  session 
at  Trenton,  N.  J.,  on  December  30,  1782,  rendered  the  follow- 
ing unanimous  “opinion”  in  favor  of  Pennsylvania: 


462 


THE  HAGUE  PEACE  CONEEKENCES 


We  are  unanimously  of  opinion  that  the  State  of  Connecticut 
has  no  right  to  the  lands  in  controversy. 

We  are  also  unanimously  of  opinion  that  the  jurisdiction  and 
preemption  of  all  the  territory  lying  within  the  charter  boundary 
of  Pennsylvania,  and  now  claimed  by  the  State  of  Connecticut, 
do  of  right  belong  to  the  State  of  Pennsylvania. 

In  1784  an  attempt  was  made  on  the  part  of  certain  citizens 
of  New  Jersey  to  have  a court  appointed,  agreeably  to  the  ninth 
article,  in  order  to  settle  a controversy  in  regard  to  a certain 
tract  of  land  termed  Indiana  included  in  the  grant  of  the  North- 
western Territory  made  by  Virginia  on  March  1,  1784,  to  the 
United  States.  Congress  refused  to  grant  the  petition  for  a 
court  and  accepted  the  conveyance.  It  thus  appears  that 
although  commissioners  might  be  appointed  by  Congress  for 
the  settlement  of  controversies  between  the  States  in  accord- 
ance with  the  provisions  of  the  ninth  article.  Congress  claimed 
and  exercised  its  discretion  either  to  appoint  or  refuse  to 
appoint  commissioners.  The  remedy  sought  to  be  provided 
by  the  article  was  thus  inadequate,  and  proceedings  under  the 
article  did  not  commend  themselves  highly  to  the  States  in 
controversy,  for  in  various  instances  the  case  was  compro- 
mised even  although  a court  had  been  appointed  for  its  con- 
sideration, as  in  the  case  of  Massachusetts  v.  New  York. 

Massachusetts  claimed  jurisdiction  over  a tract  of  land 
between  42°  2'  N.  and  44°  15'  N.,  extending  westwardly  to 
the  Southern  Ocean,  which  claim  was  denied  in  part  by  New 
York.  Unable  to  agree,  Massachusetts  prayed 

that  a Federal  court  may  be  appointed  by  Congress  to  decide 
a dispute  between  the  said  Commonwealth  and  the  State  of 
New  York. 

(June  3,  1784).  The  parties  appeared  by  their  agents  (Decem- 
ber 8,  1784)  and  were 

directed  to  appoint,  by  joint  consent,  commissioners  or  judges 
“ to  constitute  a court  for  hearing  and  determining  the  matter 
in  question,  agreeably  to  the  ninth  of  the  articles  of  confedera- 
tion and  perpetual  union.” 

A court  of  nine  commissioners  was  agreed  upon  (June  9, 
1785)  by  the  agents  of  the  litigant  parties,  and  the  commis- 


THE  COURT  OF  ARBITRAL  JUSTICE 


463 


sioners  were  notified  to  meet  at  Williamsburg,  Va.,  on  the 
third  Tuesday  of  November,  1785,  to  hear  and  determine  the 
controversy.  The  court,  however,  did  not  meet,  as  Massachu- 
setts and  New  York  subsequently  notified  Congress  that  the 
controversy  was 

settled  and  determined  by  an  agreement  entered  into  on  the 
16th  day  of  December  last  (1786),  by  the  agents  of  the  said 
States. 

As  the  case  of  Pennsylvania  v.  Connecticut  is  the  only  case 
in  which  the  court  of  arbitration  constituted  by  the  parties 
“agreeably  to  the  ninth  article”  rendered  an  “opinion,”  so 
the  case  of  South  Carolina  v.  Georgia  offers  the  only  instance 
under  the  Articles  of  Confederation  of  the  formation  of  a court 
by  alternately  striking  from  a congressional  list  until  the 
number  was  reduced  to  thirteen,  as  provided  by  the  ninth 
article.  The  State  of  South  Carolina  claimed  certain  lands; 
the  State  of  Georgia  likewise  claimed  the  territory  in  dispute. 
Unable  to  settle  the  controversy  by  direct  negotiation,  they 
appealed  to  Congress.  Therefore,  on  June  1,  1785,  Congress 
resolved 

that  the  second  Monday  in  May  next  be  assigned  for  the  ap- 
pearance of  the  States  of  South  Carolina  and  Georgia  by  their 
lawful  agents;  and  that  notice  thereof  and  of  the  petition  of  the 
legislature  of  the  State  of  South  Carolina  be  given  by  the  Secre- 
tary of  Congress  to  the  legislative  authority  of  the  State  of 
Georgia. 

The  time  of  appearance  having  been  extended,  the  agents  of 
each  State  appeared  before  Congress  on  Monday,  September, 
4,  1786,  and  were  directed 

to  appoint,  by  joint  consent,  commissioners  or  judges  to  con- 
stitute a court  for  hearing  and  determining  the  matter  in  ques- 
tion, agreeably  to  the  ninth  article  of  Confederation  and  per- 
petual union. 

Unable  to  agree  upon  the  composition  of  a court,  upon  motion 
of  the  delegates  of  Georgia  (September  13,  1786),  it  was 

resolved  that  Congress  proceed  to  strike  a court  in  the  manner 
pointed  out  by  the  Confederation. 


464 


THE  HAGUE  PEACE  CONFERENCES 


In  accordance,  therefore,  with  this  provision  three  persons 
were  named  from  each  State  and  by  alternate  striking  reduced 
to  thirteen.  Upon  motion  of  South  Carolina  these  names 
were  put  in  a box  and  the  following  nine  names  were  drawn  out 
in  the  presence  of  Congress:  Alexander  Contee  Hanson,  James 
Madison,  Robert  Goldsborough,  James  Duane,  Philemon 
Dickerson,  John  Dickinson  (the  author  of  the  article),  Thomas 
McKean,  Egbert  Benson  and  William  Pynchon.  The  first 
Monday  in  May,  1787,  was  fixed  for  the  meeting  of  the  court 
at  New  York.  A court  thus  composed  would  have  been 
excellent  and  its  decision  entitled  to  respect.  There  is  no 
evidence,  however,  that  it  sat,  as  the  case  was  settled  by  a 
compact  between  the  two  States. 

The  net  result  of  procedure  under  Article  9 was  the  trial  and 
final  determination  of  one  case  (Pennsylvania  v.  Connecticut) ; 
the  appointment  by  mutual  agreement  of  commissioners  in 
two  controversies,  settled,  however,  out  of  court  (Massachu- 
setts V.  New  York;  South  Carolina  v.  Georgia);  with  petitions 
for  the  appointment  of  a court  in  some  three  other  cases.  The 
temporary  tribunal  was  unsatisfactory.  It  was  difficult  to 
constitute,  it  rendered  but  one  “opinion,”  and  it  failed  to 
appeal  either  to  the  imagination  or  judgment  of  the  public. 
Therefore,  when  the  Constitutional  Convention  met  in  1787 
in  Philadelphia,  and  it  was  proposed  to  retain  the  ninth  article 
and  incorporate  it  in  the  Constitution,  the  proposal  met  with 
no  favor  and  was  unanimously  rejected.  Arbitration  with 
judges  of  their  own  choice  was  discarded  by  States  as  jealous 
of  their  rights  in  convention  as  any  at  the  recent  Conference 
at  The  Hague,  in  favor  of  a permanent  Supreme  Court,  com- 
posed of  judges  acting  under  a sense  of  judicial  responsibility, 
for  the  settlement  of  controversies  which  might  lead  to  war 
between  independent  and  sovereign  States.*  Arbitration 
which  failed  for  thirteen  States  has  been  replaced  by  a judi- 
ciary which  succeeds  for  forty-six  States.  Does  not  the  experi- 
ence of  the  United  States  offer  at  once  a hope  and  a precedent? 

‘Missouri  v.  Illinois,  200  U.  S.  496,  518  (1905). 


CHAPTER  X 


THE  CONVENTION  FOR  THE  ESTABLISHMENT  OF 
AN  INTERNATIONAL  COURT  OF  PRIZE » 

The  convention  creating  an  international  prize  court  is 
perhaps  the  most  distinctive  work  of  the  Conference.  It  aroused 
great  opposition.  It  has  been  widely  discussed  in  the  British 
and  somewhat  in  the  American  press.  There  are  divergent 
views  about  its  value  and  the  probability  of  its  being  gener- 
ally accepted  by  the  Powers.  But  there  can  be  no  doubt 
whatever  that  its  adoption  by  the  Conference  was  a great  step 
in  advance  although  it  should  fail  of  ratification,  because  it 
is  a recognition  of  the  fact  that  questions  affecting  neutrals 
and  conflicts  arising  out  of  the  violation  of  neutral  rights  are 
of  such  a nature  as  to  be  susceptible  of  final  adjustment  in  an 
international  court  of  prize.  It  is  a first  step  toward  the 
establishment  of  an  international  judicial  system.  The  diffi- 
culty is  the  first  step ; the  advantage  of  the  first  step  is  that 
you  cannot  retreat  when  you  have  taken  it;  for  if  the  provi- 
sions of  the  prize  court  are  faulty  they  will  be  corrected,  either 
by  diplomatic  correspondence  or  at  a subsequent  conference. 
The  principle  is  recognized  and  it  cannot  be  rejected  or  dis- 
carded. 

The  prize  court  has,  however,  a claim  upon  us  apart  from 
its  intrinsic  importance,  because  it  is  the  first  really  important 

‘ For  a discussion  of  the  problems  involved  in  the  International  Court  of 
Prize,  see  the  following]excellent  articles:  (1)  The  Proposed  International 
Prize  Court,  by  former  Justice  Henry  B.  Brown,  American  Journal  of 
International  Law  (1908),  Vol.  II,  pp.  476-489;  (2)  The  Proposed  Inter- 
national Prize  Court  and  Some  of  its  Difficulties,  by  Charles  Noble  Gre- 
gory, ibid.,  pp.  458-475;  (3)  Constitutionality  of  the  Proposed  Inter- 
national Prize  Court,  considered  from  the  standpoint  of  the  United  States, 
by  Thomas  Raeburn  White,  ibid.,  pp.  490-506. 

465 


466 


THE  HAGUE  PEACE  CONFERENCES 


world  judiciary.  International  justice  requires  an  interna- 
tional court,  and  peace,  as  well  as  war,  will  in  time  claim  its 
permanent  tribunal  at  The  Hague.  Lest  the  importance  of 
the  Prize  Court  be  not  fully  appreciated  from  this  point  of  view, 
I hasten  to  add  that  the  Second  Conference,  as  will  be  seen 
later,  accepted  the  idea  of  a periodic  conference,  and  as  an 
international  conference  is  a quasi-legislative  body  recom- 
mending its  conclusions  ad  referendum  to  the  Powers,  it  is 
evident  that  a second  step  has  been  taken  towards  the  inter- 
national organization  of  the  world’s  affairs.  A judiciary  and 
a legislature  are  not  wholly  dreams : they  are  gradually  assum- 
ing tangible  and  visible  forms.  Do  these  two  institutions 
foreshadow  an  international  executive?  Who  may  say? 
We  shall  undoubtedly  create  various  institutions  to  satisfy 
our  international  needs,  and  if  the  federation  of  the  world  be 
an  international  need,  no  doubt  it  will  come.  As  yet  the 
unaided  vision  fails  to  discover  it. 

1.  Prize  Courts  are  International  in  Theory,  but 
Municipal  or  National  in  Fact 

To  revert  to  the  subject  in  hand.  The  fundamental  princi- 
ple of  the  Prize  Court  is  that  the  interests  of  neutrals  should  be 
safeguarded  by  neutrals,  that  the  propriety  or  impropriety  of 
the  capture  of  neutral  property  should  be  decided  not  by  the 
captor  in  his  own  court  but  by  the  neutrals  in  a neutral  court. 
Heretofore  the  captor  has  passed  upon  the  validity  of  capture, 
with  every  presumption  in  favor  of  its  rightfulness.  The  bur- 
den is  placed  upon  the  claimant  and  the  court  in  which  the 
proceeding  is  brought  is  a court  of  the  captor.  His  judges, 
however  upright  and  well  informed,  can  with  difficulty  escape 
prejudice  and  national  bias.  The  underlying  principle  of  the 
prize  court  is  that  the  neutral  shall  not  merely  be  represented 
upon  the  court,  but  that  the  majority  of  the  judges  shall 
belong  to  neutral  nations.  The  belligerents,  however,  are 
not  forgotten,  nor  are  their  legitimate  interests  overlooked, 
because  each  belligerent  is  represented  during  the  trial  of  the 


INTERNATIONAL  COURT  OP  PRIZE 


467 


case.  His  representation  is,  however,  not  controlling.  He 
is  present  in  order  to  explain  the  law  and  customs  of  his  coun- 
try, to  justify  the  decree  of  his  court,  and  to  aid  in  reaching  a 
proper  judgment.  He  is  not  present  in  order  to  dominate  the 
court  and,  in  ultimate  resort,  to  secure  the  application  of  the 
local  law.  The  neutral  has  at  last  made  his  appearance  as 
the  chief  party  in  interest;  and  properly,  for  war  is  a 
matter  between  the  belligerents  and  it  should  be  confined 
to  them  as  far  as  possible.  The  belligerent  is  not  inclined 
either  in  theory  or  in  practice  to  protect  the  neutral.  The 
neutral  has  been  forced  to  protect  himself.  The  conflict  has 
been  long  but  the  victory  is  complete.  The  neutral  has 
secured  the  recognition  of  his  rights  and  is  in  a position  to 
dictate  to  the  belligerent.  The  majority  is  at  last  to  control 
the  minority.  An  international  court  of  appeal  in  prize  cases 
is  to  administer  justice  at  The  Hague,  consisting  of  fifteen 
judges,  the  majority  of  whom  are  neutrals  and  who  may 
be  trusted  to  protect  and  safeguard  the  rights  of  neutrals; 
but  the  presence  of  a judge  representing  each  belligerent  is  a 
guarantee  that  the  interests  of  the  belligerent  have  not  been 
disregarded.  Two  interests  struggle  for  mastery  and  rec- 
ognition; the  Prize  Court  is  a compromise,  but  a very  happy 
compromise  between  the  interests  of  the  neutral  and  the 
belligerent. 

The  reason  for  the  establishment  of  a court  of  prize  is  that 
prize  law  is  municipal  law  in  the  highest  sense  of  the  word; 
that  as  municipal  law  it  is  administered  in  the  municipal  courts 
and  the  rightfulness  or  wrongfulness  of  the  capture,  involving, 
it  may  be,  the  confiscation  of  neutral  property,  is  passed  upon 
by  the  captor,  who  naturally  is  anxious  to  support  the  capture 
rather  than  discredit  the  officers  who  made  it.  The  theory  of 
the  International  Prize  Court  is  the  reverse  of  this,  namely 
that  neutral  interests  are  at  least  equal  if  not  superior  to  the 
rights  of  belligerents;  that  the  rightfulness  or  wrongfulness 
of  the  capture  or  confiscation  of  neutral  property  should  be 
decided  ultimately  by  those  who  have  no  overwhelming 
interest  in  the  justification  of  the  capture;  that  as  captors  in 


468 


THE  HAGUE  PEACE  CONFERENCES 


the  past  have  failed  to  protect  neutral  interests,  the  time 
has  come  for  neutrals  to  insist  upon  the  establishment  of  an 
impartial  tribunal  to  safeguard  their  rights,  but  that  in  such 
tribunal,  so  that  it  be  not  one-sided  and  therefore  merit  the 
criticism  of  the  municipal  prize  courts,  the  other  party  in 
interest  to  the  capture,  namely  the  belligerent,  shall  be  repre- 
sented, so  that  by  a free  and  fair  exchange  of  views,  a careful 
and  impartial  examination  of  the  facts  in  controversy,  a care- 
ful discussion  of  the  rule  and  the  reason  underlying  it,  a judg- 
ment shall  be  rendered,  not  by  the  captor,  nor  indeed  by  the 
neutral,  but  by  a court  composed  of  jurists  representing  both 
interests.  It  would  seem  that  the  institution  thus  constituted 
is  indeed  a very  happy  one,  and  that  its  establishment  and 
successful  operation  would  go  far  to  protect  the  neutrals  who 
heretofore  have  had  their  rights  disregarded  in  moments  of 
great  national  excitement. 

It  is  constantly  asserted  and  maintained  that  a Prize  Court 
is  an  international  tribunal,  although  sitting  in  a particular 
nation  and  officered  by  judges  of  its  choice;  that  the  law  admin- 
istered by  it  is  international  law,  and  that  its  decisions  being 
judgments  in  rem  are  recognized  the  wurld  over  and  bind  the 
property  into  whose  hands  so  ever  it  passes.  The  law 
reports  of  Great  Britain  and  the  United  States  abound  in 
such  statements,  and  the  weighty  names  of  Lord  Stowell  and 
Chief  Justice  Marshall  support  the  doctrine.  For  example, 
in  The  Maria  (1  C.  Robinson  340)  decided  in  1799,  Lord 
Stowell,  then  Sir  William  Scott,  said : 

In  forming  that  judgment,  I trust  that  it  has  not  escaped 
my  anxious  recollection  for  one  moment  that  it  is  that  the  duty 
of  my  station  calls  for  from  me — namely,  to  consider  myself 
as  stationed  here,  not  to  deliver  occasional  and  shifting  opinions 
to  serve  present  purposes  of  particular  national  interest,  but  to 
administer  with  indifference  that  justice  which  the  law  of  nations 
holds  out  without  distinction  to  independent  States,  some  hap- 
pening to  be  neutral  and  some  to  be  belligerent.  The  seat  of 
judicial  authority  is,  indeed,  locally  here,  in  the  belligerent 
country,  according  to  the  known  law  and  practice  of  nations,  but 
the  law  itself  has  no  locality.  It  is  the  duty  of  the  person  who 
sits  here  to  determine  this  question  exactly  as  he  would  deter- 


INTERNATIONAL  COURT  OP  PRIZE 


469 


mine  the  same  question  if  sitting  at  Stockholm;  to  assert  no 
pretensions  on  the  part  of  Great  Britain  which  he  would  not 
allow  Sweden  in  the  same  circumstances,  and  to  impose  no 
duties  on  Sweden,  as  a neutral  country,  which  he  would  not 
admit  to  belong  to  Great  Britain  in  the  same  character.  If, 
therefore,  I mistake  the  law  in  this  matter,  I mistake  that  which 
I consider,  and  which  I mean  should  be  considered,  as  the  uni- 
versal law  upon  the  question — a question  regarding  one  of  the 
most  important  rights  of  belligerent  nations  relatively  to  neu- 
trals.^ 

In  the  Recovery  (6  C.  Robinson  348)  the  same  learned 
authority  pointed  out  that  the  court  was  municipal  as  well  as 
national,  and  as  such  national  court  applied  a municipal  statute 
or  ordinance  to  the  Briton  although  such  statute  or  ordi- 
nance would  not  affect  the  foreigner. 

The  court  of  admiralty  is  a court  of  revenue  in  one  of  its 

branches But  I am  now  sitting  in  a court  of  prize 

and  the  prayer  that  is  addressed  to  that  court  is,  that  it  would 
inflict  the  penalty  of  the  revenue  court  on  a foreign  ship  and 
cargo,  that  is  brought  before  it  on  a seizure  of  war.  I should 
have  been  glad  to  have  heard  under  what  authority  the  court 
of  admiralty  could  mingle  its  jurisdiction  in  this  matter.  As 
to  the  authority  of  precedents,  I will  take  on  myself  to  say, 
that  there  are  none.  The  cases  that  have  been  mentioned  were 

not  of  that  description What  they  did  was  only  to 

reject  the  claim  of  British  subjects  in  a Prize  Court,  in  a trans- 
action which  evidently  showed  those  individuals  to  have  been 
acting  in  violation  of  the  laws  of  their  country,  which  they  were 
bound  to  observe.  That  is  a well-known  doctrine,  recently 
introduced,  and  which  has  not  been  applied  without  leaving 
considerable  difficulties  behind  it But  there  is  no  in- 

stance in  which  the  same  principle  has  been  applied  to  foreigners. 
In  some  cases  it  has  been  pressed  in  argument,  the  court  has 
invariably  resisted  the  application  and  there  are  many  reasons 
which  would  make  me  very  unwilling  to  take  on  myself  the  exten- 
sion of  the  principle,  without  having  it  imposed  upon  me  by  the 
authority  of  the  Superior  Court.  It  is  a question  of  very  great 
importance,  and  if  all  other  considerations  were  out  of  the  way,  a 
sense  of  propriety  alone  would  deter  me  from  extending  the  princi- 
ple in  a case,  in  which  it  came  only  incidentally  and  indirectly 
before  me.  It  is  asked,  if  you  apply  such  a principle  to  the  claims 
of  British  subjects,  why  not  also  to  those  of  other  nations?  Some 

‘ This  court  is  properly  and  directly  a court  of  the  law  of  nations. — Per 
Sir  William  Scott,  2 C.  Robinson  77,  1799. 


470 


THE  HAGUE  PEACE  CONFERENCES 


distinctions  are  obvious.  In  the  first  place  it  is  to  be  recollected, 
that  this  is  a court  of  the  law  of  nations,  though  sitting  here 
under  the  authority  of  the  King  of  Great  Britain.  It  belongs 
to  other  nations  as  well  as  to  our  own;  and  what  foreigners  have 
a right  to  demand  from  it,  is  the  administration  of  the  law  of 
nations,  simply,  and  exclusively  of  the  introduction  of  principles 
borrowed  from  our  own  municipal  jurisprudence,  to  which, 
it  is  well  known,  they  have  at  aU  times  expressed  no  inconsider- 
able repugnance.  In  the  case  of  a British  subject  it  is  different. 
To  him  it  is  a British  tribunal,  as  well  as  a court  of  the  law  of 
nations;  and  if  he  has  been  trampling  on  the  known  laws  of  his 
country,  it  is  no  injustice  to  say,  that  a person  coming  into  any  of 
the  courts  of  his  own  country,  to  which  he  is  naturally  amenable, 
on  such  a transaction,  can  receive  no  protection  from  them. 
This  difference  of  situation  does,  I think,  afford  a sound  and 
material  distinction.  As  to  foreign  nations  and  their  subjects, 
the  breach  of  our  prohibitions  of  trade  are  merely  mala  pro- 
hibita;  it  is  an  offense  against  the  peculiar  law  of  this  country, 
which  they  may  justly  demand  to  have  tried  more  directly 
under  that  system  of  law  to  which  it  properly  belongs.  With 
respect  to  a British  subject,  the  violation  of  the  laws  of  his  own 
country  carries  with  it  also  the  malum  in  se;  and  therefore  it 
is  no  injustice  to  him,  that  his  claim  should  be  subject  to  rules, 
which  this  court  may  not  think  itself  at  liberty  to  apply  to  the 
subjects  of  foreign  States. 

In  a later  case.  Fox  and  others  (Edwards  312) , the  same 
great  judge  said : 

This  court  is  bound  to  administer  the  law  of  nations  to  the 
subjects  of  other  countries  in  the  different  relations  in  which 
they  may  be  placed  towards  this  country  and  its  government. 
This  is  what  others  have  a right  to  demand  for  their  subjects, 
and  to  complain  if  they  receive  it  not.  This  is  its  unwritten 
law,  evidenced  in  the  course  of  its  decisions,  and  collected 
from  the  common  usage  of  civilized  States. 

In  the  American  case  of  the  schooner  Adeline  (9  Cranch 
244)  it  is  said: 

The  court  of  prize  is  emphatically  a court  of  the  law  of  na- 
tions; and  it  takes  neither  its  character  nor  its  rules  from  the 
mere  municipal  regulations  of  any  country. 

Attorney  General  Speed  expresses  the  same  doctrine  in  a 
single  sentence: 


INTERNATIONAL  COURT  OF  PRIZE 


471 


Prize  courts  are  tribunals  of  the  law  of  nations  and  the 
jurisprudence  they  administer  is  a part  of  that  law.‘ 

But  these  statements  are  but  half-truths,  pleasing  fictions 
at  variance  with  the  real  state  of  affairs.  The  prize  judge 
is  not  merely  bound  to  administer  the  law  of  nations;  his 
oath  requires  him  to  consider  and  apply  the  statutes  and 
ordinances  of  his  coimtry  even  when  these  are  at  variance 
with  the  law  of  nations.  For  example,  Lord  Stowell  held 
himself  bound  in  the  case  of  The  Walsingham  Packet  (2  C. 
Robinson,  77,  1799)  to  administer  in  his  court  of  nations  the 
municipal  law  of  England  in  a case  affecting  a British  ship, 
and  in  the  later  case  of  the  Fox  (Edwards  311,  1811)  he  ex- 
tended the  orders  in  council  to  an  American  neutral  vessel.^ 

The  American  doctrine  is  identical : 

Prize  courts  are  subject  to  the  instructions  of  their  own 
sovereign.  In  the  absence  of  such  instructions  their  jurisdic- 
tion and  rules  of  decision  are  to  be  ascertained  by  reference 
to  the  known  powers  of  such  tribunals  and  the  principles  by 
which  they  are  governed  under  the  public  law  and  the  practice 
of  nations.® 

It  thus  appears  that  the  statement  so  solemnly  proclaimed 
by  Lord  Stowell  and  echoed  in  American  jurisprudence  that 
a Prize  Court  is  “ properly  and  directly  a court  of  the  law  of 
nations”  must  be  understood  in  the  sense  that  it  is  a court 
acknowledged  by  the  law  of  nations  for  the  administration  of 
international  law,  but  that  it  is  municipal  in  locality  and  organ- 
ization and  bound  by  its  very  nature  to  administer  the  munici- 
pal law  of  its  sovereign  and  constituting  authority. 

Even  if  this  were  not  so  it  is  the  court  of  the  captor,  and  its 
judges  are  but  men  prone  to  sympathize  with  their  country 
and  to  justify  its  actions  in  time  of  war.  But  the  State  is  and 

* 11  Opinions  Atty.-Gen.  445  (1866). 

® For  a careful  analysis  of  Lord  Stowell’s  judgments  and  the  steps  by  which 
he  converted  an  International  Prize  Court  into  a Municipal  Court  of  Great 
Britain,  see  an  article  in  the  Edinburgh  Review  for  February,  1812,  entitled 
Disputes  with  America,  Vol.  XIX,  p.  290;  Moore’s  Int.  Law  Digest,  Vol.  7, 
pp.  648-651. 

® The  Amy  Warwick  (2  Sprague,  123). 


472 


THE  HAGUE  PEACE  CONFERENCES 


must  be  responsible  to  the  neutral  for  any  deviation  from 
neutral  rights  as  defined  and  recognized  by  international 
law,  and,  although  the  municipal  law  or  ordinance  will  be  a 
good  defense  to  the  judge,  it  is  of  no  avail  to  the  neutral  for 
the  reason  pointed  out  by  Chief  Justice  Marshall,  that  “as  no 
nation  can  prescribe  a rule  for  others,  none  can  make  a law  of 
nations.”* 

The  nationalization  of  a Prize  Court  deprives  its  decision  of 
international  respect  and  authority. 

The  instant  that  a court  sitting  to  administer  international 
law  recognizes  either  governmental  orders  or  proclamations 
setting  forth  governmental  policy  as  constituting  rules  of  that 
code,  at  once  that  court  ceases  in  fact  to  administer  in  its  purity 
that  law  which  it  pretends  to  administer The  func- 

tion of  the  tribunal  has  undergone  a change  which  is  justly  and 
inevitably  fatal  to  its  weight  and  influence  with  foreign  powers. 
It  is  not  only  a degradation  of  the  court  itself,  but  it  is  a mis- 
chievous injury  to  the  government  which  has  destroyed  the 
efficiency  of  an  able  ally.^ 

This  unsatisfactory  state  of  affairs  has  frequently  led  to  the 
suggestion  that  an  International  Prize  Court  be  established. 
I quote  a brief  statement  of  the  various  proposals  from  Dr. 
Oppenheim’s  excellent  Treatise  on  International  Law : 

The  first  proposal  of  this  kind  was  made  in  1759  by  Hiib- 
ner,**  who  suggested  a Prize  Court  composed  of  judges  nominated 
by  the  belligerent  and  of  consuls  or  councilors  nominated  by 
the  home  State  of  the  captured  neutral  merchantmen.  A 
somewhat  similar  proposal  was  made  by  Tetens*  in  1805.  Other 
proposals  followed  until  the  Institute  of  International  Law 
took  up  the  matter  in  1875,  appointing,  on  the  proposal  of 
Professor  Westlake,  at  its  meeting  at  The  Hague,  a commission 
for  the  purpose  of  drafting  a “Projet  d’ organisation  d’un  tri- 
bunal international  des  prises  maritimes.”  In  the  course  of 

' The  Antelope  (10  Wheaton,  66,  122,  1825). 

^5  American  Law  Review,  225;  Moore’s  Int.  Law  Digest,  Vol.  VII, 
p.  648. 

’ De  la  saisie  des  batiments  neutres  (1759),  Vol.  II,  p.  21. 

* Considerations  sur  les  droits  r6ciproques  des  puissances  belligerantes  et 
des  puissances  neutres  sur  mer,  avec  les  principes  du  droit  de  guerre  en 
g4n4ral  (1805),  p.  62. 


INTERNATIONAL  COURT  OF  PRIZE 


473 


time  there  were  in  the  main  two  proposals  before  the  Institute, 
Westlake’s  and  Bulmerincq’s.  Westlake  proposed'  a Court 
of  Appeal  to  be  instituted  in  each  case  of  war,  which  should 
consist  of  three  judges — one  to  be  nominated  by  the  belliger- 
ent concerned,  another  by  the  home  State  of  the  neutral 
prizes  concerned,  and  third  by  a neutral  Power  not  interested 
in  the  case.  According  to  Westlake’s  proposal  there  would 
therefore  have  to  be  instituted  in  every  war  as  many  Courts  of 
Appeal  as  neutrals  are  concerned.  Bulmerincq  proposed-  two 
Courts  to  be  instituted  in  each  war  for  all  prize  cases — the  one 
to  act  as  Prize  Court  of  the  First  Instance,  the  other  to  act  as 
Prize  Court  of  Appeal,  each  Court  to  consist  of  three  judges — 
one  judge  to  be  appointed  by  either  belligerent,  the  third  judge 
to  be  appointed  in  common  by  all  neutral  maritime  Powers. 
Finally,  the  Institute  agreed  at  its  meeting  at  Heidelberg  in 
1887  upon  the  following  proposal,  which  embodied  in  §§  100-109 
of  the  Reglement  international  des  prises  maritimes;^  At 
the  beginning  of  a war  either  belligerent  institutes  a Court  of 
Appeal  consisting  of  five  judges,  the  president  and  one  of  the 
other  judges  to  be  appointed  by  the  belligerent,  the  three  re- 
maining to  be  nominated  by  three  neutral  Powers,  this  Court  to 
be  competent  for  all  prize  cases.'* 

2.  Questions  Involved  in  an  Appeal  from  a National  to 
AN  International  Court 

Thus  the  matter  stood  at  the  opening  of  the  Second  Hague 
Conference,  but  the  initiative  of  Germany  and  Great  Britain 
and  the  support  of  the  United  States  and  France  resulted  in  a 
careful  and  thoughtful  project  for  the  establishment  of  an  Inter- 
national Prize  Court,  adopted  by  the  Conference  and  deserving 
the  approval  of  the  community  of  nations. 

The  preamble  to  the  Prize  Court  explains,  in  general,  the 
reasons  which  led  to  its  adoption : 

Animated  by  the  desire  to  settle  in  an  equitable  manner 
the  differences  which  sometimes  arise  in  the  course  of  a naval 
war  in  connection  with  the  decisions  of  National  Prize  Courts; 

Considering  that,  if  these  courts  are  to  continue  to  exercise 
their  functions  in  the  manner  determined  by  national  legisla- 

' See  Annuaire,  II  (1878),  p.  114. 

^ See  R.  I.,  XI  (1879),  pp.  191-194. 

^Annuaire,  IX  (1887),  p.  2.39. 

* Oppenheim’s  International  Law,  Vol.  II,  pp.  478-480. 


474 


THE  HAGUE  PEACE  CONFERENCES 


tion  it  is  desirable  that  in  certain  cases  an  appeal  should  be 
provided,  under  conditions  conciliating,  as  far  as  possible,  the 
public  and  private  interests  involved  in  matters  of  prize; 

Whereas,  moreover,  the  institution  of  an  International  Court, 
whose  jurisdiction  and  procedure  would  be  carefully  defined, 
has  seemed  to  be  the  best  method  of  attaining  this  object; 

Convinced,  finally,  that  in  this  manner  the  hardships  con- 
sequent on  naval  war  would  be  mitigated;  that,  in  particular, 
good  relations  will  be  more  easily  maintained  between  bellig- 
erents and  neutrals  and  peace  better  assured. 

The  Prize  Court  convention  may  be  divided  into  three  great 
groups:  the  first  part  of  the  convention  dealing  with  matters 
of  general  concern  and  interest,  the  second  division  relating 
to  the  organization  of  the  international  court  of  prize,  and  the 
third  dealing  with  the  procedure  to  be  followed  before  the 
court.  Of  each  of  these  in  turn: 

In  the  first  place,  a Prize  Court  might  be  established  at  The 
Hague  to  take  original  jurisdiction  of  all  cases  of  maritime 
prize.  In  such  a case  this  court  would  be  a court  of  first 
instance,  and  would  necessarily  exclude  the  competence  of 
the  municipal  courts  of  the  various  countries.  In  the  next 
place,  the  court  of  prize  at  The  Hague  might  be  a Court  of 
Appeal,  that  is  to  say,  the  municipal  courts  of  the  various 
countries  might  entertain  questions  of  prize  and  pass  upon 
them  in  the  first  instance,  leaving  to  the  claimant  a right  of 
appeal  to  The  Hague  Court  after  national  justice  had  been 
exhausted.  In  case  of  an  excess  of  jurisdiction  or  in  case  of 
a denial  of  justice  or  great  dissatisfaction  with  the  judgment 
of  the  Municipal  Court,  an  appeal  would  lie  to  the  court  at  The 
Hague.  Again,  there  might  be  a compromise  between  the 
extremes,  namely,  an  appeal  to  the  court  at  The  Hague  from 
the  judgment  of  a Municipal  Court  of  First  Instance,  without 
allowing  an  appeal  to  the  National  Court  of  last  Instance.  One 
country,  namely,  Brazil,  preferred  the  establishment  at  The 
Hague  of  a court  of  original  and  exclusive  jurisdiction,  but 
this  view  received  no  encouragement.^ 

' La  Deuxieme  Conference  Internationale  de  la  Paix,  Vol.  II,  First. 
Commission,  Second  Sub-Commission,  2d  Session,  July  4, 1907;  Actes  et 
Discours  de  M.  Ruy  Barbosa,  p.  10. 


INTERNATIONAL  COURT  OF  PRIZE 


475 


Finally,  there  might  be  an  examination  de  novo  of  the  ques- 
tion involved  in  the  judgment  of  the  National  Court  irrespec- 
tive of  such  judgment,  and  the  decision  of  the  international 
tribunal  would  be  final  between  the  litigating  nations.  In 
this  way  the  controversy  would  be  decided  upon  its  merits 
without  affecting  the  national  judgment.  This  is  familiar 
practice  in  prize  cases  submitted  to  international  commissions, 
such  as  the  commissions  constituted  under  Article  VII  of  Jay’s 
Treaty  between  Great  Britain  and  the  United  States  signed 
November  19,  1794,  and  under  Articles  XII-XVII  of  the 
treaty  of  Washington  of  May  8, 1871.  The  national  judgments 
are  necessarily  involved  and  are  considered  by  the  commission, 
but  the  determination  of  the  commission  is  neither  an  affirma- 
tion nor  a reversal  of  the  national  judgment.  The  mixed 
commission  is  a Court  of  Arbitration,  not  a Court  of  Appeal. 
This  method  was  not,  however,  presented  to  nor  discussed  by 
the  Conference.  Its  adoption  would  have  obtained  substan- 
tially the  same  results  as  a Court  of  Appeal  in  prize  cases  with- 
out involving  delicate  and  intricate  questions  of  constitutional 
law. 

The  second  project,  namely,  that  the  justice  of  the  national 
courts  should  be  exhausted  and  an  appeal  should  lie  from  the 
final  decision  of  the  National  Court  was  the  favorite  project  of 
Great  Britain  and  was  concurred  in  by  the  American  dele- 
gation for  the  following  reason : The  courts  of  Great  Britain 
have  made  very  much  of  the  maritime  law  of  the  world; 
the  Supreme  Court  of  the  United  States  has  followed  pre- 
cedents of  Great  Britain  and  in  some  cases  has  extended  their 
doctrine.  Anglo-American  jurisprudence,  therefore,  having 
played  so  important  a part  in  prize  law,  it  seemed  advisable 
to  exhaust  the  local  jurisdiction  before  an  appeal  be  taken, 
because  it  is  to  be  presumed  that  the  decision  of  the  final 
court  of  each  of  the  two  countries  would  correct  any  error 
of  the  inferior  courts  so  that  there  might  be  no  need  of  appeal, 
or,  if  the  necessity  existed,  the  judgment  of  the  final  court 
of  Great  Britain  as  well  as  the  judgment  of  the  Supreme 
Court  of  the  United  States  would  be  a great  aid  in  the  argu- 


476 


THE  HAGUE  PEACE  CONFERENCES 


ment  of  the  case  before  the  court  at  The  Hague . Great  Britain, 
therefore,  refused  to  consent  to  an  intermediate  appeal, 
and,  as  previouslv  said,  the  United  States  shared  this  view. 

In  the  course  of  discussion  it  appeared  that  in  Great  Britain 
and  the  United  States  there  is  but  one  appeal — in  Great  Britain 
an  appeal  from  the  Admiralty  Court  to  the  court  of  last  resort, 
and  in  the  United  States  an  appeal  directly  from  the  District 
Court  to  the  Supreme  Court,  whereas  in  other  nations  there 
are  intermediate  appeals.  Therefore,  in  order  to  satisfy  what 
seemed  the  legitimate  desire  of  the  two  countries  in  question, 
a compromise  was  effected  so  that  municipal  courts  should 
entertain  the  cause  in  the  first  instance  with  one  national 
appeal  (Article  6). 

Within  what  time  should  the  municipal  courts  terminate 
their  examination  and  reach  a decision?  The  inconvenience 
of  requiring  the  justice  of  the  national  courts  to  be  exhausted 
is  twofold,  first  that  it  involves  great  expense  before  reaching 
a final  decision  and,  secondly,  that  great  delay  inevitably 
intervenes.  The  interest  of  the  neutral  is  not  merely  that  his 
case  shall  be  decided  correctly  but  rapidly,  because  vast  sums 
of  money  are  engaged  and  a vessel  rotting  in  the  harbor  is  of 
no  use.  Therefore,  it  was  decided  that  the  jurisdiction  of 
the  national  tribunals,  whether  the  municipal  courts  be  ex- 
hausted or  not,  should  not  extend  beyond  a period  of  two  years, 
which  period  was  determined  by  the  American  delegation 
after  a careful  examination  of  the  appeals  from  the  District 
Courts  arising  out  of  captures  made  in  the  late  Spanish-Amer- 
ican  War.  Within  two  years  all  the  appeals  in  prize  cases  were 
taken  and  the  final  decisions  of  the  Supreme  Court  handed  down. 

It  was  therefore  decided  that  the  court  at  The  Hague  should 
not  be  invested  with  original  jurisdiction,  but  that  it  should 
sit  as  an  appellate  court.  A country  preferring  one  national 
appeal  is  not  compelled  to  submit  the  case  before  a rehearing  in 
an  Appellate  Court,  but  as  there  were  other  countries  willing 
to  permit  an  appeal  from  the  National  Court  of  First  Instance, 
a ver}'-  happy  compromise  was  reached  in  Article  6 of  the  con- 
vention. 


INTERNATIONAL  COURT  OF  PRIZE 


477 


When,  in  accordance  with  the  above  Article  3,  the  Interna- 
tional Court  has  jurisdiction,  the  national  courts  cannot  deal 
with  a case  in  more  than  two  instances.  The  municipal  law  of 
the  belligerent  captor  shall  decide  whether  the  case  may  be 
brought  before  the  International  Court  after  judgment  has  been 
given  in  first  instance  or  only  after  an  appeal. 

If  the  national  courts  fail  to  give  final  judgment  within  two 
years  from  the  date  of  capture,  the  case  may  be  carried  direct 
to  the  International  Court. 

It  is  a question  which  view  will  appeal  to  the  American  peo- 
ple. Every  country  is  asked  to  give  up  something.  Each 
country  is  asked  to  surrender  the  right  of  passing  finally  upon 
the  validity  of  capture.  A very  grave  question  presents  itself 
whether  or  not  the  United  States  will  wish  an  appeal  to  be 
taken  from  the  Supreme  Court,  and  to  have  the  judgment  pf 
the  Supreme  Court  confirmed  or  reversed  by  an  international 
court  of  appeal.  It  may  be  that  the  duly  constituted  author- 
ity of  this  countiy,  if  it  does  not  wholly  reject  the  idea  of 
appeal  and  is  willing  to  consent  to  the  establishment  of  a 
Prize  Court,  may  prefer  to  allow  an  appeal  directly  from  the 
court  of  first  instance,  namely,  the  District  Court,  to  the  court 
at  The  Hague.  If  the  idea  prove  at  all  acceptable,  it  is,  how- 
ever, a simple  matter  by  legislation  to  decide  which  is  the 
proper  form  and  to  provide  the  necessary  rules  for  perfecting 
the  appeal. 

It  is  indeed  something  new  to  submit  a decision  of  a United 
States  court  to  a foreign  court,  an  international  tribunal, 
but  it  is  not  wholly  unknown,  although  it  is  unknown  in  this 
direct  form.  To  quote  a familiar  instance.  By  the  Treaty 
of  May  8,  1871,  between  Great  Britain  and  the  United  States  for 
the  settlement  of  claims  arising  out  of  the  Civil  War,  it  was 
provided  in  Articles  12,  13  and  14  that  claims  of  subjects 
of  Great  Britain  against  the  United  States  arising  out  of  trans- 
actions beginning  in  1861  and  ending  in  1865,  should  be  pre- 
sented to  a mixed  commission,  and  it  is  a fact  that  to  this 
mixed  commission,  composed  of  an  American,  British  and  Italian 
member,  numerous  claims  were  presented  by  the  British 
Government  on  behalf  of  its  subjects,  which  had  been  settled 


478 


THE  HAGUE  PEACE  CONFERENCES 


by  a final  adverse  judgment  of  the  Supreme  Court  of  the  United 
States;  and  it  is  a fact  that  the  mixed  tribunal  in  six  well- 
known  cases  awarded  full  compensation  to  the  claimants 
notwithstanding  the  existence  of  the  judgment  of  that  august 
tribunal;  and  it  is  a further  fact  that  the  United  States 
Government  paid  the  awards  of  the  commission.^  Therefore, 
it  occurs  to  some,  indeed  it  occurred  to  the  American  delega- 
tion last  summer,  that  that  which  had  been  done  by  a special 
treaty  might  be  done  by  a general  one,  and  what  had  been 
done  indirectly,  namely,  by  submitting  the  claim,  might  be 
done  directly  by  submitting  the  judgment;  because  disguise  it 
as  we  may,  the  fact  is  that  the  claim  is  an  appeal  from  the 
judgment  of  the  Supreme  Court  of  the  United  States;  for  the 
submission  of  a claim,  passed  upon  finally  by  the  Supreme 
Court,  questions  the  judgment  of  the  court,  although  it  does 
not , technically  reverse  it.  The  judgment  of  the  Supreme 
Court  in  a prize  case  is  not  final,  although  conclusive,  between 
the  parties  to  the  record.  The  question,  not  the  judgment, 
is  reopened  and  determined,  notwithstanding  the  judgment  of 
the  Supreme  Court.  The  question,  not  the  judgment,  is  the 
basis  of  discussion;  but  the  judgment  of  the  court  is  involved 


^The  following  cases  upon  which  decisions  had  been  rendered  by  the 
Supreme  Court  of  the  United  States  were  afterwards  submitted  to  arbitra- 
tion by  the  United  States  under  the  British-American  Claims  Convention 
sitting  under  Article  12  of  the  Treaty  of  Washington  for  decision  “according 
to  justice  and  equity:” 

1.  Cases  in  which  the  international  tribunal  decided  adversely  to  the 
decision  of  the  Supreme  Court  of  the  United  States,  which  international 
decisions  were  obeyed  by  the  United  States.  The  Hiawatha,  2 Black,  635, 
4 Moore’s  International  Arbitrations,  3902;  The  Circassian,  2 Wallace,  135, 

4 Moore,  3911;  The  Springbok,  5 Wallace,  1,4  Moore,  3928;  The  Sir  William 
Peel,  5 Wallace,  517,  4 Moore,  3935;  The  Volant,  5 Wallace,  179,  4 Moore, 
3950;  The  Science,  5 Wallace,  178,  4 Moore,  3950. 

2.  Cases  in  which  the  decision  of  the  international  tribimal  upheld  the 
decision  of  the  Supreme  Court  of  the  United  States:  The  Peterhof,  5 
Wallace,  28, 4 Moore’s  International  Arbitrations,  3838;  The  Dashing  Wave, 

5 Wallace,  170,  4 Moore,  3948;  The  Georgia,  7 Wallace,  32,  4 Moore,  3957; 
Isabella  Thompson,  3 Wallace,  155,  3 Moore,  3159;  The  Pearl,  5 Wallace, 
574,  3 Moore,  3159;  The  Adela,  6 Wallace,  266,  3 Moore,  3159. 


INTEENATIONAL  COUET  OF  PEIZE 


479 


and  brought  to  discussion,  because  the  adverse  judgment  of 
the  court  is  the  foundation  of  the  action  taken.i 

The  difference  between  the  two  methods  of  procedure  is  a 
difference  of  form,  not  of  substance.  The  question  of  form  is, 
shall  the  judgment  be  presented  or  shall  merely  the  question 
be  presented?  Questions  of  form  are,  in  legal  matters,  of 
great  importance,  but  we  should  not  overlook  the  fact  that  we 
have  subordinated  the  Supreme  Court  in  times  past  to  an 
international  commission,  and  if  we  have  done  so  in  the  past 
we  may  do  so  in  the  future.  It  would  seem  that  the  submis- 
sion of  the  judgment  to  an  International  Tribunal  would  be  a 
much  more  intelligent  and  a much  more  satisfactory  solution ; 
because  instead  of  being  presented  to  a commission  consti- 
tuted for  a particular  occasion,  the  questions  or  judgments 
would  be  adjudged  by  an  impartial  court  permanently  con- 
stituted, composed  of  trained  lawyers,  accustomed  to  hear 
evidence  and  to  weigh  it  carefully.  It  may  be,  I do  not  ven- 
ture a positive  opinion,  that  if  the  decisions  of  the  Supreme 
Court  or  the  questions  involved  in  the  discussions  thereof  had 
been  submitted  to  a tribunal  composed  of  jurists  permanently 
in  session,  instead  of  a temporary  commission,  some  of  them 
might  not  have  been  questioned  or  reversed,  for  reversed  they 
were  in  the  popular,  though  not  in  the  judicial  sense  of  the 
term. 

The  importance  and  interest  of  the  subject  require  a more 
technical  treatment  of  the  difficulty  based  upon  the  fact  that 
the  Supreme  Court  is  the  ultimate  court  in  the  United  States 
from  which  an  appeal  may  not  be  taken.  It  may  be  admitted 
that  an  appeal  would  not  lie  from  the  Supreme  Court  to 
Another  court  in  the  United  States,  for  the  judicial  power  of  the 
United  States  is  vested  in  one  Supreme  Court.  A diplomatic 
court  established  in  a foreign  country  is  not  a court  of  the 


‘ There  is  no  claim  untU  the  courts  have  decided.  That  decision,  then, 
is  not  only  not  final,  but  on  the  contrary  is  the  beginning,  the  very  corner- 
stone of  the  international  controversy. — Per  Davis,  J.,  in  Gray,  Admr. 
V.  United  States,  21  Court  of  Claims,  340,  401-402. 


480 


THE  HAGUE  PEACE  CONFERENCES 


United  States  in  the  sense  of  the  Constitution,  any  more  than 
a mixed  commission  is  a court  of  the  United  Statesd  In  the 
next  place,  the  judicial  power  of  the  United  States  is  subject 
to  definition  and  limitation,  because  the  courts  of  the  country 
can  only  be  invested  with  the  power  possessed  by  the  United 
States.  If  prize  law  be  international  law,  the  United  States 
may  provide  a court  for  its  administration  and  interpretation, 
but  its  decisions  cannot  make  an  international  law  for  the 
nations,  and  their  subjects  not  residing  or  domiciled  in  the 
United  States  are  not  bound  to  submit  to  its  jurisdiction. 
Jurisdiction  is  not  conferred  by  seizure,  and  following  prop- 
erty unlawfully  taken  cannot  be  said  to  be  submission  to 
jurisdiction.  The  question,  therefore,  is  as  to  the  extent  of 
the  judicial  power  of  the  United  States  in  the  matter  of 
prize. 

If  international  law  is  in  its  entirety  an  integral  and  com- 
ponent part  of  the  municipal  law  of  the  United  States^  and 
if  the  law  of  prize  and  the  jurisdiction  of  prize  courts  are  not 
only  recognized  by  but  derived  from  the  law  of  nations,  it  follows 
that  a recognition  of  international  law  by  the  Constitution 
without  express  or  implied  limitation  is  an  adoption  of  the 
system  of  international  law  at  the  moment  of  its  adoption, 
and  if  it  appear,  as  is  the  case,  that  the  decision  of  a prize  court 
affecting  neutral  rights  is  only  valid  and  final  in  so  far  as  con- 
sistent with  and  based  upon  international  law,  and  if  it  appear 
further  that  a judgment  inconsistent  with  the  law  of  nations, 
while  conclusive  between  individuals  is  not  final  so  far  as  the 
neutral  nation  is  concerned,  but  subject  to  protest  and  appeal 
through  diplomatic  channels,  it  would  seem  to  follow  that  the 
jurisdiction  vested  in  the  federal  courts  “concerning  captures 
on  land  and  water”  by  act  of  Congress,  though  final  in  respect 
to  American  citizens  and  aliens  domiciled  within  the  United 

‘ In  re  Ross,  140  U.  S.,  453  (1890). 

^ International  law  is  a part  of  our  law,  and  must  be  ascertained  and 
administered  by  the  courts  of  justice  of  appropriate  jurisdiction,  as  often 
as  questions  of  right  depending  upon  it  are  duly  presented  for  their  deter- 
mination.— The  Paquette  Habana,  175  U.  S.  677,  700  (1899). 


INTEKNATIONAL  COURT  OF  PRIZE 


481 


States,  is  neither  final  nor  conclusive  in  regard  to  neutral 
nations  d 

In  vesting  the  judicial  power  in  “one  Supreme  Court  and  in 
such  inferior  courts  as  the  Congress  may  from  time  to  time 
establish,”  it  is  to  be  presumed  that  the  Constitution  granted 
to  the  one  Supreme  Court  and  inferior  courts  established  by 
Congress  the  jurisdiction  in  matters  of  international  law 
possessed  by  the  United  States  as  a member  of  the  family  of 
nations,  and  that  the  Constitution  and  acts  of  Congress  made 
in  pursuance  of  the  Constitution  are  to  be  interpreted  in  the 
light  of  the  law  of  nations  as  recognized  by  the  express  word- 
ing of  the  Constitution.  As,  therefore,  the  law  of  nations  did 
not  recognize  the  decision  of  a municipal  prize  court  in  matters 
of  neutral  rights  as  final  if  in  contravention  of  the  principle 
of  international  law,  it  would  seem  to  follow  that  the  grant  of 
jurisdiction  to  the  one  Supreme  Court  and  inferior  courts  estab- 
lished by  Congress  was  subject  to  the  right  of  appeal  recognized 
by  the  laws  of  nations  as  appertaining  as  of  right  to  a neutral 


* The  defendants  say,  further,  the  condemnation  can  not  be  illegal  be- 
cause made  by  a prize  court  having  jurisdiction,  and  the  decisions  of  such 
courts  are  final  and  binding.  This  proposition  is,  of  course,  admitted  so 
far  as  the  res  is  concerned;  the  decision  of  the  court,  as  to  that,  is  undoubt- 
edly final,  and  vests  good  title  in  the  purchaser  at  the  sale;  not  so  as  to  the 
diplomatic  claim,  for  that  claim  has  its  very  foundation  in  the  judicial  de- 
cision, and  its  validity  depends  upon  the  justice  of  the  court's  proceedings 
and  conclusion.  It  is  an  elementary  doctrine  of  diplomacy  that  the  citizen 
must  exhaust  his  remedy  in  the  local  courts  before  he  can  fall  back  upon  his 
Government  for  diplomatic  redress;  he  must  then  present  such  a case  as 
will  authorize  that  Government  to  urge  that  there  has  been  a failure  of 
justice.  The  diplomatic  claim,  therefore,  is  based  not  more  upon  the  orig- 
inal wrong  upon  which  the  coxurt  decided  than  upon  the  action  and  conclu- 
sion of  the  court  itself,  and,  diplomatically  speaking,  there  is  no  claim  until 
the  courts  have  decided.  That  decision,  then,  is  not  only  not  final,  but  on 
the  contrary  is  the  beginning,  the  very  corner-stone,  of  the  international 
controversy. — Per  Davis,  J.,  in  Gray,  Admr.  v.  United  States,  21  Court 
of  Claims,  340, 402. 

Condemnation  of  prize  courts  are  final  in  actions  between  individuals, 
and  as  to  vessels  condemned,  giving  purchasers  a good  title,  but  do  not  bind 
foreign  nations,  nor  bind  claims  valid  by  international  law. — Cushing  v. 
United  States,  22  Court  of  Claims.  1. 


482 


THE  HAGUE  PEACE  CONFERENCES 


nation.^  In  other  words,  the  judicial  power  of  the  United 
States,  unlimited  as  far  as  citizens  and  property  of  citizens  of 
the  United  States  are  concerned,  is  limited  in  the  matter  of 
neutral  rights  involved  in  the  adjudication  of  prize  by  the  law 
of  nations.  The  right  of  protest  and  appeal  though  diplo- 
matic channels  is  not  excluded  by  the  constitutional  and  con- 
gressional grant,  however  final  in  terms.  In  the  absence  of  a 
Court  of  Appeal,  common  to  the  United  States  and  the  neutral, 
the  controversy,  international  in  its  origin  and  nature,  is  sub- 
ject to  diplomatic  adjustment  by  the  contending  nations, 
which  may  settle  it  directly  by  informal  agreement  or  create 
by  treaty  a temporary  or  permanent  tribunal  for  its  judicial 
settlement.  To  this  tribunal  the  question  may  be  submitted, 
or,  as  best  evidence  of  the  controversy,  the  judgment  of  the 
supreme  or  inferior  courts — ^for  the  settlement  of  the  contro- 
versy between  the  nations  is  a diplomatic  not  a judicial  ques- 
tion, and  any  evidence  be  it  the  original  statement  of  the  facts 
of  the  case  or  the  judgment  of  a court  of  justice  may  be  consid- 
ered. As  the  treaty-making  power  exists  for  the  purpose  of 
regulating  international  intercourse — for  the  States  of  the  Union 
are  expressly  forbidden  to  enter  into  relations  with  foreign 
States — and,  as  the  claim  of  a neutral  for  violation  of  neutral 
rights  is  an  international  controversy,  the  establishment  of  an 
international  court  of  prize  for  the  judicial  settlement  of  such 
controversies  would  seem  to  be  an  appropriate  and  commend- 
able exercise  of  the  treaty-making  power.  Whether  our  gov- 
ernment cares  to  ratify  the  convention  concerning  the  Prize 
Court  would  seem  to  be  a matter  of  expediency,  not  of  power. 
The  treaty,  however,  would  not  be  self-executory  and  Congress 
would  have  to  pass  appropriate  legislation;  but  as  Congress  pos- 

‘ The  principle  that  the  decisions  of  prize  courts  are  not  internation- 
ally conclusive  as  to  the  doctrines  applied,  and  that  a claimant  injured 
by  a wrongful  decision  may  seek  indemnity  through  the  action  of  his  Gov- 
ernment, is  no  longer  open  to  question.  The  right  to  indemnity  in  such 
cases  was  demonstrated  in  the  remarkable  opinion  delivered  by  William 
Pinkney  [Moore’s  Int.  Arbitrations,  Vol.  III.,  p.  3180]  as  one  of  the  com- 
missioners under  Article  VII  of  the  Jay  Treaty,  under  which  large  amounts 
were  paid  by  the  British  Government  to  citizens  of  the  United  States  as 


INTERNATIONAL  COURT  OF  PRIZE 


483 


sesses  the  express  constitutional  power  to  “ make  rules  concern- 
ing captures  on  land  and  water,”  no  difficulty  could  arise  on  this 
head  provided  the  expediency  and  constitutionality  of  the  pro- 
posed court  be  beyond  doubt.  I admit,  however,  the  gravity  of 
the  question,  and  while  I hope  that  the  convention  will  be  rati- 
fied by  our  Senate,  I cannot  express  a confident  opinion.  I can 
merely  say  that  the  spirit  in  the  point  of  approach  seems  to  be 
to  ratify  in  as  large  a measure  as  possible  the  conventions  nego- 
tiated at  The  Hague.  As  to  the  expediency  or  advisability 
of  ratifying  the  special  convention,  the  duly  constituted  author- 
ity, namely,  the  treaty-making  power,  must  judge. 

Should,  however,  the  Senate  be  imwilling  to  permit  an 
appeal  from  the  District  or  Supreme  Court  to  the  International 
Court  at  The  Hague,  it  is  possible  to  secure  by  diplomatic  agree- 
ment, without  the  modification  of  the  text  of  the  Convention,  an 
additional  article  or  protocol  to  be  embraced  in  the  ratification  of 
the  Convention  by  which  each  Signatory  of  the  Convention  ol 
October  18,  1907,  shall  possess  the  option,  in  accordance  with 
local  legislation,  either  to  submit  the  general  question  of  the 
rightfulness  of  any  capture  to  the  determination  of  the  Inter- 
national Prize  Court,  or  to  permit  an  appeal  from  the  judgment 
of  a National  Court  in  a specific  case  direct  to  the  International 
Court  of  Prize,  as  contemplated  by  the  Convention  of  October 
18,  1907.  As  formulated  by  our  Secretary  of  State  this  article 
would  be  as  follows : 


indemnity  for  captures  and  condemnations  imder  orders  in  council  viola- 
tive of  the  rights  of  neutral  trade.  Similar  indemnities  were  obtained 
from  France  for  wrongful  captures  and  condemnations  during  the  Napo- 
leonic wars,  as  well  as  from  Spain,  Naples  and  Denmark.  In  the  case  of 
Denmark,  the  question  of  the  international  finality  of  prize  sentences  gave 
rise  to  a long  discussion,  which  was  conducted  on  the  part  of  the  United 
States  by  Henry  Wheaton,  as  Minister  to  Denmark.  Indemnities  were  also 
obtained  by  British  subjects  from  the  United  States  in  certain  prize  cases 
under  Article  XII  of  the  Treaty  of  Washington  of  May  8,  1871. — Moore’s 
Int.  Law  Digest,  Vol.  VII,  pp.  651-652. 

For  a long  and  careful  argument  that  neither  rights  in  rem  nor  in  perso- 
nam should  be  acquired  by  an  illegal  prize  decision,  see  De  Lapradelle  et 
Politis : Recueil  des  Arbitrages  Internationaux,  Vol.  I,  pp.  87-99. 


484 


THE  HAGUE  PEACE  CONFERENCES 


Any  Signatory  of  the  Convention  for  the  establishment  of 
an  International  Court  of  Prize,  signed  at  The  Hague  on  Octo- 
ber 18,  1907,  may  provide  in  the  act  of  ratification  thereof,  that, 
in  lieu  of  subjecting  the  judgments  of  the  courts  of  such  Signa- 
tory Powers  to  review  upon  appeal  by  the  International  Court 
of  Prize,  any  prize  case  to  which  such  Signatory  is  a party  shall 
be  subject  to  examination  de  novo  upon  the  question  of  the 
captor’s  liability  for  an  alleged  illegal  capture,  and,  in  the  event 
that  the  International  Court  of  Prize  finds  liability  upon  such 
examination  de  novo,  it  shall  determine  and  assess  the  dam- 
ages to  be  paid  by  the  country  of  the  captor  to  the  injured 
party  by  reason  of  the  illegal  captured 

Each  nation  would  thus  possess  the  option  of  submitting  the 
judgment  of  its  courts  to  the  International  Court  at  The  Hague 
or  of  submitting  the  question  of  liability  instead  of  the  judg- 
ment for  reexamination.  Either  method  would  obtain  a final 
decision  of  the  question  involved  by  a permanent  and  impartial 
court  composed  of  competent  and  impartial  jurists.  The 
difference  would  be  one  of  form  not  of  substance,  but  the  with- 
drawal of  a national  judgment  from  examination  and  reversal 
seems  eminently  calculated  to  remove  the  objections  made  to 
the  establishment  of  the  court. 

The  question,  then,  of  the  operation  of  the  court  as  a Court 
of  Appeal  may  be  considered  as  sufficiently  discussed  for  our 
present  purposes. 

3.  Parties  to  a Case  Before  the  International  Prize 

Court 

The  question  arises,  what  subjects  may  be  brought  before 
the  court,  and  what  persons  or  suitors  may  present  them  to  the 
court?  Article  3 says  in  substance:  The  appellant  may  claim 
that  the  Municipal  Court  was  mistaken  in  fact,  in  which  event 
the  case  is  tried  anew,  or  in  law,  in  which  eventuality  the  case  is 
reargued  upon  the  facts  as  found  by  the  trial  court.  The 
jurisdiction  of  the  proposed  court  is  thus  coextensive  with 
the  error  complained  of. 

' For  action  of  the  Naval  Conference  on  this  point,  see  p.  510,  post 
sc’iptum,  infra. 


INTERNATIONAL  COURT  OP  PRIZE 


485 


As  the  court  is  primarily  created  to  safeguard  the  rights  of 
neutrals,  it  is  natural  that  they  should  appear  before  it,  either 
to  claim  property  wrongfully  seized  and  condemned,  or  to 
seek  redress  for  an  injury  inflicted  upon  them  contrary  to  the 
law  of  nations.  The  causes  of  appeal  are  as  many  and  varied 
as  the  illegal  actions  of  the  belligerent  captors. 

The  enemy  is,  however,  permitted  to  appear  before  the 
court;  but  his  right,  unlike  that  of  the  neutral,  is  confined  to 
certain  clearly  defined  and  specifically  enumerated  cases, 
because  the  action  of  belligerent  against  belligerent  is  no  more 
subject  to  neutral  jurisdiction  than  the  propriety  of  neutral 
conduct  to  the  whim  and  pleasure  of  a belligerent.  The  resort 
of  the  belligerent  should  be  limited  to  cases  in  which  neutral 
interests  are  involved  or  in  which  an  existing  convention 
between  the  belligerents,  that  is  to  say,  an  international  obliga- 
tion, is  violated,  or  a legal  disposition  of  the  belligerent  is 
improperly  interpreted.  An  examination  of  the  provisions  of 
Article  3 shows  that  the  right  of  the  belligerent  is  so  defined 
and  restricted.  For  example,  if  enemy  property  upon  a neu- 
tral vessel  be  seized,  the  Declaration  of  Paris  is  violated.  The 
neutral  can  resort  to  the  court  because  of  the  injury  to  his 
neutral  right,  but  the  enemy  owner  may  also  appeal  to  the 
court  audits  judgment  will  do  justice  to  the  neutral  and  to  the 
enemy  claimant.  A double  right  of  suit  is  a double  guarantee. 

In  the  next  place,  an  enemy  vessel  may  be  captured  in 
neutral  waters.  Here,  again,  a twofold  right  of  action  accrues, 
for  the  neutral  may  demand,  through  diplomatic  channels, 
the  return  of  the  property  in  accordance  with  the  provisions 
of  Article  3 of  the  Convention  Concerning  Neutral  Powers  in 
Naval  War,  or  the  neutral  may  prefer  to  allow  the  court  of  the 
belligerent  to  pass  upon  the  capture,  and  to  prosecute  an  appeal 
before  the  International  Court  at  The  Hague.  Small  Powers 
find  it  difficult  to  obtain  a hearing  in  the  Foreign  Offices,  but 
courts  of  justice  pay  no  respect  to  the  question  of  worldly  rank 
and  position. 

A case  in  the  Supreme  Court  of  the  United  States  admirably 
explains  the  rights  and  duties  of  neutral  and  belligerent  in  such 


486 


THE  HAGUE  PEACE  CONFERENCES 


a case.  A Confederate  cruiser  named  the  Florida  was  cap- 
tured in  the  territorial  waters  of  Brazil  during  the  Civil  War. 
The  right  and  duty  of  the  neutral  were  thus  stated; 

The  Brazilian  Government  was  justified  by  the  law  of  na- 
tions in  demanding  the  return  of  the  captured  vessel  and  proper 
redress  otherwise.  It  was  due  to  its  own  character,  and  to  the 
neutral  position  it  had  assumed  between  the  belligerents  in  the 
war  then  in  progress,  to  take  prompt  and  vigorous  measures 
in  the  case,  as  was  done.  The  commander  was  condemned 
by  the  law  of  nations,  public  policy,  and  the  ethics  involved 
in  his  conduct.^ 

As  between  belligerents,  the  capture  is  valid. 

Neither  a beUigerent  owner  nor  an  individual  enemy  owner 
can  be  heard  to  complain.  But  the  neutral  sovereign  whose 
territory  has  been  violated  may  interpose  and  demand  repara- 
tion, and  is  entitled  to  have  the  captured  property  restored. 

The  court  proceeds  to  state  that 

the  title  to  captured  property  always  vests  primarily  in  the 
government  of  the  captors.  The  rights  of  individuals,  where 
such  rights  exist,  are  the  results  of  local  law  or  regulations. 
Here,  the  capture  was  promptly  disavowed  by  the  United  States. 
They,  therefore,  never  had  any  title.* 

The  question  thus  affects  the  neutral  although  the  property 
of  the  enemy  is  involved.  It  is  to  be  presumed  that  the  bel- 
ligerent government  will  disavow  the  act,  either  through  its 
Foreign  Office,  or  by  decision  of  court.  If  this  should  not  be 
so,  then  an  appeal  should  lie  to  the  International  Court.  Had 
the  Supreme  Court  decreed  the  Florida  legal  prize,  Brazil 
could  have  had  recourse  to  The  Hague  Court.  Article  4 of 
the  Convention  precludes  the  belligerent  from  bringing  suit  in 
a case  of  this  kind,  which  provision  is  in  strict  accord  with  the 
law  of  our  Supreme  Court. 

Finally,  the  court  is  open  to  the  belligerent,  in  case  “the 
seizure  has  been  effected  in  violation  either  of  the  provisions 
of  a Convention  in  force  between  the  belligerent  Powers,  or  of 

* The  Florida,  101  U.  S.  37,  (1879). 

*Ibid. 


INTERNATIONAL  COURT  OF  PRIZE 


487 


an  enactment  issued  by  the  belligerent  captor.”  In  the  case 
of  a convention  the  resort  is  natural,  because  “a  convention 
between  the  belligerents”  is  an  international  act  and  properly 
subject  to  international  construction  and  interpretation.  The 
propriety  of  the  latter  clause  is  not  so  apparent,  but  not  less 
real,  because  a belligerent  has  a right  to  a proper  construction 
of  a legal  enactment  of  its  enemy.  A forced  and  unjust 
interpretation  is  a violation  of  justice  which  should  be  cor- 
rected in  a court  of  law.  The  captor’s  court  will  give  no  re- 
dress. The  International  Court  will.  The  mere  fact  of  an 
appeal  in  such  a case  is  a guarantee  for  a careful  and  correct 
decision.  The  mere  right  of  appeal  may  probably  render  the 
appeal  unnecessary. 

Having  stated  in  Article  3 the  judgments  from  which  an 
appeal  may  be  taken,  the  Convention  specifies  in  Article  4 the 
parties  appellant. 

Article  4 

An  appeal  may  be  brought — 

1.  By  a neutral  Power,  if  the  judgment  of  the  National 
Tribunals  injuriously  affects  its  property  or  the  property  of 
its  nationals  (Article  3,  1),  or  if  the  capture  of  an  enemy 
vessel  is  alleged  to  have  taken  place  in  the  territorial  waters  of 
that  Power  (Article  3,  2,  b); 

2.  By  a neutral  individual,  if  the  judgment  of  the  National 
Court  injuriously  affects  his  property  (Article  3,  1,),  subject, 
however,  to  the  reservation  that  the  Power  to  which  he  belongs 
may  forbid  him  to  bring  the  case  before  the  Court,  or  may  itself 
undertake  the  proceedings  in  his  place; 

3.  By  an  individual  subject  or  citizen  of  an  enemy  Power, 
if  the  judgment  of  the  National  Court  injuriously  affects  his 
property  in  the  cases  referred  to  in  Article  3 (2),  except  that 
mentioned  in  paragraph  6.  . 

The  provisions  of  the  first  paragraph  are  self-evident  and 
require  neither  explanation  nor  comment.  It  may  be  asked, 
why  should  the  neutral  individual  be  given  a right  to  appeal? 
International  law  does  not  know  individuals;  international 
law  deals  with  sovereign  States.  Why  then  should  the  individ- 
ual appear  as  a suitor  before  an  international  court?  There 
are  several  reasons.  The  individual  suitor  is  the  one  who  has 


488 


THE  HAGUE  PEACE  CONFERENCES 


suffered.  It  may  be  that  his  country  is  unwilling  to  espouse 
his  cause  from  a belief  that  it  is  properly  decided,  or  it  may 
be  that  he  is  a citizen  or  subject  of  a small  country  which  may 
not  wish  to  offend  the  belligerent  by  appeaUng.  But  the 
individual  smarting  under  the  loss  of  his  property  may  appeal, 
and  his  appearance  does  not  in  any  sense  of  the  word  render 
his  country  liable  to  ill  treatment  at  the  hand  of  the  strong  and 
powerful  belligerent.  Again,  the  Foreign  Office  may  not  care 
to  be  bothered  with  and  pass  upon  a case  that  may  properly 
go  before  an  International  Court.  In  this  way  the  provision 
will  be  a great  relief.  But  it  may  be  that  the  case  is  so  impor- 
tant, and  the  principle  involved  so  far-reaching  and  funda- 
mental that  the  neutral  may  wish  to  appear  for  the  individual 
claimant,  or  for  these  very  reasons  it  may  decide  that  an  appeal 
be  improper,  because  the  relief  sought  is  one  which  the  neutral 
as  a belligerent  would  not  consider  for  a moment.  The  matter 
is  thus  one  affecting  the  neutral : it  is  for  the  neutral  nation  to 
decide,  and  the  convention  wisely  and  properly  considers  it  one 
of  national,  not  of  international  regulation. 

As  the  wrong  creates  the  right,  it  naturally  follows  that  suc- 
cessors in  interest  to  neutral  or  belligerent  acquire  the  right 
of  appeal  to  the  court  possessed  by  their  predecessors.  This 
appears  from  Article  5,  the  text  of  which  follows : 

An  appeal  may  also  be  brought  on  the  same  conditions  as  in 
the  preceding  article,  by  persons  belonging  either  to  neutral 
States  or  to  the  enemy,  deriving  their  rights  from  and  entitled 
to  represent  an  individual  qualified  to  appeal,  and  who  have 
taken  part  in  the  proceedings  before  the  National  Court.  Per- 
sons so  entitled  may  appeal  separately  to  the  extent  of  their 
interest. 

The  same  rule  applies  in  the  case  of  persons  belonging  either 
to  neutral  States  or  to  the  enemy  who  derive  their  rights  from 
and  are  entitled  to  represent  a neutral  Power  whose  property 
was  the  subject  of  the  decision. 

4.  The  Law  to  be  Administered  by  the  International 

Prize  Court 

The  question  next  arises,  what  law  is  the  court  to  admims- 
ter?  The  answer  is  far  from  easy  and  on  it  hangs  the  fate  of 


INTERNATIONAL  COURT  OF  PRIZE 


489 


the  court.  If  international  law  were  codified,  the  code  should 
be  administered.  Unfortunately  this  is  not  the  case.  If  a 
principle  of  international  law  is  universally  recognized,  the 
court  would  administer  it,  but  there  are  many  disputed  points 
in  international  law  and  a uniform  practice  cannot  be  said  to 
exist.  Of  the  conflicting  views,  which  is  the  court  to  take? 
In  the  absence  of  a general  agreement,  the  court  must  deter- 
mine the  law  applicable  to  the  case,  else  it  cannot  reach  a 
judgment.  To  allow  the  court  to  resolve  the  conflict  is  to 
invest  it  with  legislative  as  well  as  judicial  functions.  The 
law  must  either  be  codified  in  advance,  which  has  not  been 
done,  or  it  may  be  determined  by  special  treaty  between  vari- 
ous Powers  which  will  thus  prescribe  the  law  to  be  administered 
by  the  court  in  a case  affecting  these  countries,  or,  otherwise, 
the  court  is  limited  to  the  administration  of  universally 
accepted  law,  a great  gain  to  neutrals,  but  it  would  be  forced 
to  declare  itself  incompetent  whenever  the  litigants  opposed 
the  clashing  and  irreconcilable  principles  of  their  national 
theory  and  practice. 

To  take  a few  familiar  illustrations  in  order  to  present  the 
diflSculty  in  concrete  form.  What  is  contraband?  What  sub- 
jects are  properly  included  in  absolute  or  conditional  contra- 
band? What  is  blockade?  When  does  it  begin,  when  does  it 
end,  and  when  may  a vessel  be  captured  for  attempting  to 
break  the  blockade?  Does  it  render  itself  liable  to  capture 
the  moment  it  leaves  neutral  waters  destined  to  the  blockaded 
port,  or  when  it  actually,  that  is  physically,  attempts  to  enter 
the  port?  Does  international  law  acknowledge  the  doctrine 
of  continuous  voyages  in  the  matter  of  contraband?  Is  the 
doctrine  applicable  to  blockade?  These  questions  are  an- 
swered one  way  by  Anglo-American  jurisprudence,  and  in 
another  and  irreconcilable  way  by  many  of  the  Continental 
nations  of  Europe.  Which  theory  and  practice  shall  the 
court  prefer  and  apply? 

The  Conference  attempted,  without  success,  as  will  appear 
later,  to  codify  the  law  of  contraband  and  blockade,  and  it  is  a 
grave  question  whether  the  various  nations  parties  to  the  Con- 


490 


THE  HAGUE  PEACE  CONFERENCES 


vention  will  willingly  submit  to  the  decision  of  the  tribunal 
when  the  law  is  not  known,  or  when  it  cannot  reasonably  be 
predicted  in  advance.  My  own  individual  opinion,  if  I may 
dare  to  venture  one,  is  this:  the  neutral  wishes  certainty 
rather  than  the  triumph  of  any  one  system  of  law.  It  is 
uncertainty  that  worries  him  and  interferes  with  his  ventures. 
If  the  court,  by  adopting  either  principle,  whether  it  be  the 
Anglo-American  of  the  Continental,  renders  certain  that 
which  was  uncertain  before,  the  interests  of  the  neutral  are 
safeguarded  because  he  can  conform  his  actions  to  a definite 
requirement  of  the  law.  Therefore,  even  if  the  Conference  was 
unable  to  codify  the  law,  the  court  could  by  consent  of  the 
nations  reach  a conclusion,  as  in  the  case  of  the  common  law 
of  England  which  has  grown  by  judicial  decisions.  The  com- 
mon law  of  nations  would  be  given  certainty  and  precision  by 
the  operation  of  the  International  Court.  The  question,  how- 
ever, is  one  of  great  gravity  and  fundamental  importance.  It 
must  be  met  and  solved,  if  the  Prize  Court  is  to  enter  into 
operation  and  confer  upon  neutral  and  belligerent  the  bene- 
fits predicted  from  its  impartial  and  acceptable  administra- 
tion of  justice. 

The  Convention  deals  in  Article  7 with  the  law  to  be  admin- 
istered : 

Article  7 

If  a question  of  law  to  be  decided  is  covered  by  a treaty 
in  force  between  the  belligerent  captor  and  a Power  which  is  itself 
or  whose  subject  or  citizen  is  a party  to  the  proceedings,  the 
court  is  governed  by  the  provisions  of  the  said  treaty. 

In  the  absence  of  such  provisions,  the  court  shall  apply  the 
rules  of  international  law.  If  no  generally  recognized  rule 
exists,  the  court  shall  give  judgment  in  accordance  with  the 
general  principles  of  justice  and  equity. 

The  above  provisions  apply  equally  to  questions  relating 
to  the  order  and  mode  of  proof. 

If,  in  accordance  with  Article  3,  2,  c,  the  ground  of  appeal 
is  the  violation  of  an  enactment  issued  by  the  belligerent  captor, 
the  court  will  enforce  the  enactment. 

The  court  may  disregard  failure  to  comply  with  the  pro- 
cedure laid  down  in  the  enactments  of  the  belligerent  captor, 
when  it  is  of  opinion  that  the  consequences  of  complying  there- 
with are  unjust  and  inequitable. 


INTERNATIONAL  COURT  OP  PRIZE 


491 


It  is  a familiar  maxim  that  contemporanea  expositio  est  optima 
et  fortissima  in  lege.  Fortunately,  contemporary  exposition 
exists  in  this  case  in  the  beautiful  and  luminous  report  on  the 
court  presented  to  the  Conference  by  Professor  Louis  Renault, 
and  as  his  interpretation  of  this  article  was  accepted  by  the 
Conference  as  its  official  interpretation,  I quote  in  full  his 
analysis : 

What  rules  of  law  will  the  new  Prize  Court  apply? 

This  is  a question  of  the  greatest  importance,  the  delicacy 
and  gravity  of  which  can  not  be  overlooked.  It  has  often 
claimed  the  attention  of  those  who  have  thought  of  the  estab- 
lishment of  an  international  jurisdiction  on  the  subject  we  are 
considering. 

If  the  laws  of  maritime  warfare  were  codified,  it  would  be 
easy  to  say  that  the  International  Prize  Court,  the  same  as  the 
national  courts,  should  apply  international  law.  It  would  be 
a regular  function  of  the  international  court  to  revise  the  deci- 
sions of  the  national  courts  which  had  wrongly  applied  or  inter- 
preted the  international  law.  The  international  courts  and  the 
national  courts  would  decide  in  accordance  with  the  same  rules, 
which  it  would  be  supposed  ought  merely  to  be  interpreted  more 
authoritatively  and  impartially  by  the  former  courts  than  by 
the  latter.  But  this  is  far  from  being  the  case.  On  many  points, 
and  some  of  them  very  important  ones,  the  laws  on  maritime 
warfare  are  still  uncertain,  and  each  nation  formulates  them 
according  to  its  ideas  and  interests.  In  spite  of  the  efforts  made 
at  the  present  Conference  to  diminish  these  uncertainties,  one 
can  not  help  realizing  that  many  will  continue  to  exist.  A 
serious  difiiculty  at  once  arises  here. 

It  goes  without  saying  that  where  there  are  rules  established 
by  treaty,  whether  they  are  general  or  are  at  least  common  to 
the  nations  concerned  in  the  capture  (the  captor  nation  and  the 
nation  to  which  the  vessel  or  cargo  seized  belongs),  the  Inter- 
national Court  will  have  to  conform  to  these  rules.  Even  in 
the  absence  of  a formal  treaty,  there  may  be  a recognized  cus- 
tomary rule  which  passes  as  a tacit  expression  of  the  will  of 
the  nations.  But  what  will  happen  if  the  positive  law,  written 
or  customary,  is  silent?  There  appears  to  be  no  doubt  that 
the  solution  dictated  by  the  strict  principles  of  legal  reasoning 
should  prevail.  Wherever  the  positive  law  has  not  expressed 
itself,  each  belligerent  has  a right  to  make  his  own  regulations, 
and  it  can  not  be  said  that  they  are  contrary  to  a law  which  does 
not  exist.  In  this  case,  how  could  the  decision  of  a national 
Prize  Court  be  revised  when  it  has  merely  applied  in  a regular 
manner  the  law  of  its  country,  which  law  is  not  contrary  to  any 


492 


THE  HAGUE  PEACE  CONFERENCES 


principle  of  international  law?  The  conclusions  would  therefore 
be  that  in  default  of  an  international  rule  firmly  established, 
the  International  Court  shall  apply  the  law  of  the  captor. 

Of  course  it  will  be  easy  to  offer  the  objection  that  in  this  man- 
ner there  would  be  a very  changeable  law,  often  very  arbitrary 
and  even  conflicting,  certain  belligerents  abusing  the  latitude 
left  them  by  the  positive  law.  This  would  be  a reason  for  has- 
tening the  codification  of  the  latter  in  order  to  remove  the  de- 
ficiencies and  the  uncertainties  which  are  complained  of  and 
which  bring  about  the  diflficult  situation  which  has  just  been 
pointed  out. 

However,  after  mature  reflection,  we  believe  that  we  ought 
to  propose  to  you  a solution,  bold  to  be  sure,  but  calculated 
considerably  to  improve  the  practice  of  international  law.  “ If 
generally  recognized  rules  do  not  exist,  the  court  shall  decide 
according  to  the  general  principles  of  justice  and  equity.”  It  is 
thus  called  upon  to  create  the  law  and  to  take  into  account  other 
principles  than  those  to  which  the  National  Prize  Court  was  re- 
quired to  conform,  whose  decision  is  assailed  by  the  interna- 
tional court.  We  are  confident  that  the  judges  chosen  by  the 
Powers  will  be  equal  to  the  task  which  is  thus  imposed  upon 
them,  and  that  they  will  perform  it  with  moderation  and  firm- 
ness. They  will  interpret  the  rules  of  practice  in  accordance 
with  justice  without  overthrowing  them.  A fear  of  their  just 
decisions  may  mean  the  exercise  of  more  wisdom  by  the  bellig- 
erents and  the  national  judges,  may  lead  them  to  make  a more 
serious  and  conscientious  investigation,  and  prevent  the  adop- 
tion of  regulations  and  the  rendering  of  decisions  which  are  too 
arbitrary.  The  judges  of  the  International  Court  will  not  be 
obliged  to  render  two  decisions  contrary  to  each  other  by  apply- 
ing successively  to  two  neutral  vessels  seized  under  the  same 
conditions  different  regulations  established  by  the  two  bellig- 
erents. To  sum  up,  the  situation  created  for  the  new  Prize 
Court  will  greatly  resemble  the  condition  which  long  existed 
in  the  courts  of  countries  where  the  laws,  chiefly  customary, 
were  still  rudimentary.  These  courts  made  law  at  the  same 
time  that  they  applied  it,  and  their  decisions  constituted  pre- 
cedents, which  become  an  important  source  of  the  law.  The 
most  essential  thing  is  to  have  judges  who  inspire  perfect  con- 
fidence. If,  in  order  to  have  a complete  set  of  international 
laws,  we  were  to  wait  until  we  had  judges  to  apply  it,  the  event 
would  be  a prospective  one  which  even  the  youngest  of  us  could 
hardly  expect  to  see.  A scientific  society,  such  as  the  Institute  of 
International  Law, was  able,  by  devoting  twelve  years  to  the  work, 
to  prepare  a set  of  international  regulations  on  maritime  prizes 
in  which  the  organization  and  the  procedure  of  the  International 
Court  have  only  a very  limited  scope.  The  community  of  civ- 
ilized nations  is  more  diflficult  to  set  on  foot  than  an  association 


INTERNATIONAL  COURT  OF  PRIZE 


493 


of  jurisconsults;  it  must  be  subject  to  other  considerations  or 
even  other  prejudices,  the  reconcilement  of  which  is  not  so  easy 
as  that  of  legal  opinions.  Let  us  therefore  agree  that  a court 
composed  of  eminent  judges  shall  be  entrusted  with  the  task 
of  supplying  the  deficiencies  of  positive  law  until  the  codifica- 
tion of  international  law  regularly  undertaken  by  the  Govern- 
ments shall  simplify  their  task. 

The  ideas  which  have  just  been  set  forth  will  be  applicable 
with  regard  to  the  order  of  admission  of  evidence  as  well  as  to 
the  means  which  may  be  employed  in  gathering  it.  In  most 
countries  arbitrary  rules  exist  regarding  the  order  of  admission 
of  evidence.  To  use  a technical  expression,  upon  whom  does 
the  burden  of  proof  rest?  To  be  rational  one  would  have  to  say 
that  it  is  the  captor’s  place  to  prove  the  legality  of  the  seizure 
that  is  made.  This  is  especially  true  in  case  of  a violation  of 
neutrality  charged  against  a neutral  vessel.  Such  a violation 
should  not  be  presumed.  And  still  the  captured  party  is  fre- 
quently required  to  prove  the  nullity  of  the  capture,  and  conse- 
quently its  illegality,  so  that  in  case  of  doubt  it  is  the  captured 
party  (the  plaintiff)  who  loses  the  suit.  This  is  not  equitable 
and  will  not  be  imposed  upon  the  International  Court. 

What  has  just  been  said  regarding  the  order  of  evidence  also 
applies  to  the  means  of  gathering  it,  regarding  which  more  or 
less  arbitrary  rules  exist.  How  can  the  nationality,  ownership, 
and  the  domicile  be  proven?  Is  it  only  by  means  of  the  ship’s 
papers,  or  also  by  means  of  documents  produced  elsewhere? 
We  believe  in  allowing  the  court  full  power  to  decide. 

Finally,  in  the  same  spirit  of  broad  equity,  the  court  is  au- 
thorized not  to  take  into  account  limitations  of  procedure  pre- 
scribed by  the  laws  of  the  belligerent  captor,  when  it  deems 
that  the  consequences  thereof  would  be  unreasonable.  For 
instance,  there  may  be  provisions  in  the  law  which  are  too  strict 
with  regard  to  the  period  for  making  appeal  or  which  enable  a 
relinquishment  of  the  claim  to  be  too  easily  presumed,  etc. 

There  is  a case  in  which  the  International  Court  necessarily 
applies  simply  the  law  of  the  captor,  namely,  the  case  in  which 
the  appeal  is  founded  on  the  fact  that  the  national  court  has 
violated  a legal  provision  enacted  by  the  belligerent  captor. 
This  is  one  of  the  cases  in  which  a subject  of  the  enemy  is  allowed 
to  appeal.  (Article  3,  No.  2a,  at  end.) 

Article  7 which  has  thus  been  commented  upon,  is  an  obvious 
proof  of  the  sentiment  of  justice  which  animates  the  authors 
of  the  draft,  as  well  as  of  the  confidence  which  they  repose  in  the 
successful  operation  of  the  institution  to  be  created.^ 


^La  Deuxi^ne  Conference  Internationale  de  la  Paix,  1907,  Actes  et 
Documents,  Vol.  I,  pp.  190-192. 


494 


THE  HAGUE  PEACE  CONFERENCES 


The  views  of  the  Conference,  as  expressed  by  Professor 
Renault,  have  encountered  criticism  from  various  quarters, 
and  of  the  many  I select  one  because  of  the  familiarity  of  its 
author  with  all  matters  of  prize  law.  As  far  back  as  1875, 
Professor  John  Westlake  brought  the  matter  of  an  International 
Prize  Court  before  the  Institute  of  International  Law  and  pre- 
pared and  presented  a project  to  that  learned  and  influential 
society.^  His  knowledge  of  the  subject  is  wide  and  his  interest 
in  the  success  of  the  court  keen.  In  his  recently  published 
volume  on  International  Law  he  thus  speaks  of  Article  7: 

The  terms  in  which  Article  7 thus  describes  the  law  to  be 
applied  on  the  appeal  require  a careful  examination.  It  is 
beyond  question  that  relevant  conventions  must  hold  the  first 
rank,  and  rules  of  international  law  which  are  generally  recog- 
nized the  second.  But  it  is  less  clear  in  what  sense  all  that  is 
not  concluded  by  one  of  those  tests  is  referred  to  justice  and 
equity.  The  school  of  “ the  Law  of  Nature  and  Nations,”  which 
succeeded  to  the  school  of  Grotius  and  did  not  share  that  great 
man’s  reverence  for  facts,  was  ready  to  impose  solutions  of  all 
international  questions  as  the  result  of  pure  reason,  and  would 
have  made  short  work  of  any  dissents  from  its  conclusions,  even 
if  supported  by  a considerable  body  of  practice.  It  is  true  that 
this  school  is  now  much  discredited,  and  in  England  especially 
when  reasoning  has  to  be  resorted  to  on  the  affairs  of  the  na- 
tions, the  appeal  is  made  to  justice  and  the  law  of  nature  is 
rarely  mentioned.  Elsewhere,  however,  “the  law  of  nature” 
or,  “the  primary  law”  are  still  mentioned  often  enough  to  pre- 
vent one’s  feeling  quite  sure  whether  the  notions  once  connected 
with  them  may  not  survive  to  such  an  extent  as  to  influence  the 
judgment  about  what  justice  and  equity  demand. 

The  subject  is  one  which  so  imperatively  demands  frankness 
that  we  will  illustrate  it  by  examples,  and  they  shall  not  be 
taken  from  topics  covered  by  the  Declaration  of  Paris,  the  rules 
of  which  may  well  be  treated  as  now  generally  recognized.  Is 
the  notice  of  blockade,  to  which  a ship  desiring  to  enter  a block- 
aded port  is  entitled,  to  be  measured  by  the  British  or  French 
rules?  Is  conditional  contraband  to  be  allowed?  If  not,  can 
coal  and  provisions  ever  be  absolute  contraband?  Does  the 
declaration  of  the  commander  of  a neutral  convoy  exclude  the 
right  of  search?  These  and  many  others  are  questions  on  which 
it  cannot  be  said  that  any  rules  are  generally  recognized.  By 
leaving  them  to  justice  and  equity,  is  it  meant  that  they  are 

* See  Annuaire  of  the  Institute,  Vol.  II,  (1878),  p.  114. 


INTERNATIONAL  COURT  OF  PRIZE 


495 


left  quite  open  for  the  International  Prize  Court  to  deal  with 
as  if  they  had  never  been  raised  before  they  came  before  it,  as 
writers  belonging  to  the  school  of  the  Law  of  Nature  and  Na- 
tions would  have  done?  Or  is  it  meant  that  a wholly  different 
class  of  considerations  may  be  taken  into  account?  The  appeal 
will  lie  from  a National  Court  bound  by  its  sovereign’s  view  of 
the  law,  and  it  is  not  just  or  equitable  for  a Court  of  Appeal  to 
reverse  a judgment  which  the  court  below  was  right  in  giving. 
The  convention,  if  entered  into,  will  not  have  been  intended 
to  transfer  the  jurisdiction  from  the  national  courts  to  the  Inter- 
national Prize  Court,  but  to  afford  a remedy  for  abuses  in  its 
exercise.  Only  in  the  case  contemplated  by  Article  6,  where 
there  will  have  been  laches  on  the  part  of  the  proper  jurisdic- 
tion, can  the  International  Prize  Court  act  as  one  of  first  in- 
stance. In  every  other  case  it  will  be  dealing  with  a national 
pronouncement  which  justice  and  equity  will  forbid  its  revers- 
ing when  it  was  founded  on  a view  of  international  rights  seri- 
ously entertained  by  the  State  in  question,  and  not  ousted  by 
stipulation  or  general  recognition  to  the  contrary. 

M.  Renault,  in  the  report  which  he  presented  on  behalf  of 
the  sub-committee  which  prepared  the  draft  (Comit4  d’  Examen 
de  la  Seconde  Sous-Commission),  fully  admitted  the  strength  of 
the  latter  view.  " What,”  he  said,  “ will  happen  if  positive  law, 
written  or  customary,  is  silent?  The  solution  dictated  by  the 
strict  principles  of  juridical  reasoning  does  not  appear  doubt- 
ful. In  default  of  an  international  rule  firmly  established,  the 
international  jurisdiction  will  apply  the  law  of  the  captor.  No 
doubt  it  is  easy  to  object  that  we  shall  so  have  a very  variable 
law,  often  very  arbitrary  and  even  such  as  to  shock  us,  certain 
belligerents  using  to  an  excess  the  latitude  left  by  positive  law. 
That  would  be  a reason  for  hastening  the  codification  of  the 
latter,  in  order  to  efface  the  gaps  and  uncertainties  which  are 
complained  of,  and  which  cause  the  difficult  situation  that  has 
been  pointed  out.”  But  he  went  on  to  say:  “Nevertheless, 
after  mature  reflection,  we  think  it  our  duty  to  propose  to  you 
a solution,  bold  without  doubt,  but  of  such  a nature  as  seriously 
to  ameliorate  the  practice  of  international  law.”  Then  he  stated 
the  formula  adopted  in  Article  7,  and  proceeded:  “The  court 
is  thus  called  on  to  make  the  law  {faire  le  droit),  and  to  take 
account  of  principles  other  than  those  to  which  the  National 
Prize  jurisdiction,  of  which  the  decision  is  attacked  before  the 
International  Court,  was  subject.  We  are  confident  that  the 
magistrates  chosen  by  the  powers  will  rise  to  the  height  of  their 
mission,  and  will  exercise  it  with  moderation  and  firmness. 
They  will  point  practice  in  the  direction  of  justice  without  upH 
setting  it.  Let  us  then  admit  that  a court  composed  of  eminent 
magistrates  shall  be  charged  with  supplying  the  insufficiencies 


496 


THE  HAGUE  PEACE  CONFERENCES 


of  positive  law,  until  the  codification  of  international  law,  reg- 
ularly pursued  by  governments,  comes  to  simplify  its  task.”^ 

It  is  therefore  certain  that  the  learned  reporter  intended, 
in  default  of  stipulation  and  general  agreement,  to  invest  the 
International  Prize  Court  with  the  mission  claimed  by  a Pufen- 
dorff,  only  trusting  to  its  moderation  in  exercising  it.  There 
are  no  doubt  minor  points  on  which  the  court  might  usefully 
build  up  a practice,  or  decide  in  particular  cases  where  it  would 
be  difficult  to  embody  a practice  in  terms  of  any  generality. 
For  instance,  after  what  happened  during  the  South  African 
War  a claim  to  search  for  contraband  at  any  distance  from  the 
ship’s  destination  cannot  be  said  to  be  generally  recognized,  and 
the  coiu-t  might  be  trusted  to  decide  whether  any  particular  search 
was  too  remote,  while  if  a rule  of  any  generality  resulted  from 
such  decisions  it  might  be  thankfully  accepted.  But  in  the 
light  of  M.  Renault’s  report  it  is  certain  that  the  adopted  draft 
of  1907  would  be  interpreted  to  put  in  the  power  of  the  court 
those  major  points  of  which  we  have  given  examples,  and  on 
which  the  inveteracy  of  the  differences  is  proved  by  the  failure 
of  the  same  conference  to  settle  them.  We  cannot  therefore 
advise  the  conclusion  of  a convention  in  the  terms  of  that  draft 
unless  the  law  of  the  captor  be  put  in  the  last  place  in  Article 
7,  or  at  least  unless  Article  7 be  fenced  by  a proviso  that  the 
judgment  of  a court  of  any  State  shall  not  be  reversed  because 
it  gives  effect  to  a view  of  international  law  seriously  maintained 
by  that  State.  Under  such  conditions  an  International  Prize 
Court  would  still  have  great  functions  to  perform,  and  would  in 
our  judgment  be  a valuable  improvement  on  the  present  sys- 
tem.^ 

Professional  opinion  in  Great  Britain  is  opposed  to  Article 
7 as  it  stands,  and  Great  Britain  has  already  invited  a Con- 
ference of  Maritime  Powers  to  meet  in  London,  December  4, 
1908,  in  order  to  agree  upon  the  law  to  be  applied  in  the  absence 
of  a convention  between  the  parties  and  of  ‘ 'a  generally  recog- 
nized rule.”®  If  this  be  the  only  serious  objection  to  the  court, 


' Courrier  de  la  Conference,  No.  75,  10  September,  1907. 

’ Westlake’s  International  Law,  part  II,  pp.  293-296. 

^ The  subjects  upon  which  an  agreement  is  considered  indispensable  by 
the  British  Government  in  order  to  enable  the  International  Prize  Court 
to  perform  the  high  services  expected  by  its  establishment  are  the  following: 

a.  Contraband,  including  the  circumstances  under  which  particular 
articles  can  be  considered  as  contraband;  the  penalties  for  their  carriage; 
the  immunity  of  a ship  from  search  when  under  convoy;  and  the  rules  with 


INTEKNATIONAL  COURT  OF  PRIZE 


497 


the  omission  of  the  paragraph  for  the  present  would  enable  the 
court  to  be  established  by  the  Contracting  Powers.  A sub- 
sequent conference  could  no  doubt  frame  an  acceptable  com- 
promise. 

The  next  conference  is  to  undertake  “the  preparation  of 
regulations  relative  to  the  laws  and  customs  of  naval  war” 
in  accordance  with  a voeu  by  the  recent  Conference,  and  it  is  to 
be  hoped  that  the  laws  and  customs  of  naval  war  may  be 
codified  as  successfully  as  the  laws  and  customs  of  land  war- 
fare. In  this  case  the  court  would  have  a complete  code  to 
administer.  A few  years  are  as  nothing  in  the  life  of  nations. 
Another  conference  will  have  met  and  concluded  its  labors 
before  we  are  many  years  older, — before,  it  is  to  be  hoped,  a 
war  shall  have  supplied  the  court  with  business. 


regard  to  compensation  where  vessels  have  been  seized  but  have  been  found 
in  fact  only  to  be  carrying  innocent  cargo; 

6.  Blockade,  including  the  questions  as  to  the  locality  where  seizure 
can  be  effected  and  the  notice  that  is  necessary  before  a ship  can  be  seized; 

c.  The  doctrine  of  continuous  voyage  in  respect  both  of  contraband  and 
of  blockade; 

d.  The  legality  of  the  destruction  of  neutral  vessels  prior  to  their  con- 
demnation by  a Prize  Court; 

c.  The  rules  as  to  neutral  ships  or  persons  rendering  “ unneutral  service  ” 
(“  assistance  hostile  ”) ; 

/.  The  legality  of  the  conversion  of  a merchant  vessel  into  a warship 
on  the  high  seas. 

g.  The  rules  as  to  the  transfer  of  merchant  vessels  from  a belligerent 
to  a neutral  flag  during  or  in  contemplation  of  hostilities; 

h.  The  question  whether  the  nationality  or  the  domicile  of  the  owner 
should  be  adopted  as  the  dominant  factor  in  deciding  whether  property  is 
enemy  property. 

The  importance  attached  by  the  British  Government  to  an  agreement 
upon  these  various  subjects  enumerated  in  the  program  is  evidenced  by 
the  fact  that  it  is  stated  in  the  British  note  that  “it  would  be  diflflcult,  if 
not  impossible,  for  His  Majesty’s  Government  to  carry  the  legislation  neces- 
sary to  give  effect  to  the  convention  unless  they  could  assure  both  Houses 
of  the  British  Parliament  that  some  more  definite  imderstanding  had  been 
reached  as  to  the  rules  by  which  the  new  tribunal  should  be  governed.” 


498 


THE  HAGUE  PEACE  CONFERENCES 


5.  The  Effect  of  a Judgment  of  the  International 
Prize  Court 

But  supposing  the  difficulties  raised  by  the  law  to  be  admin- 
istered have  been  resolved,  the  question  of  the  effect  of  the 
judgment  of  the  International  Court  upon  the  National  Court 
must  be  considered.  Here  again  the  question  is  one  of  gravity 
and  of  no  little  difficulty.  The  difference  between  arbitration 
and  a Court  of  Appeal  is  apparent  and  real.  The  award  of 
a mixed  commission  may  be  inconsistent  with  a national 
judgment,  but  it  does  not  reverse  it.  The  mixed  commission 
and  the  National  Court  are  for  purposes  of  the  case  coor- 
dinate and  equal  jurisdictions,  and  the  decision  of  either 
has,  technically  speaking,  no  direct  influence  upon  the  other. 
The  idea  of  reversal  presupposes  the  relation  of  superior  and 
inferior.  The  decision  of  the  law  court  is  affirmed  or  reversed 
on  appeal.  The  Court  at  The  Hague  is  a Court  of  Appeal  in 
prize  cases  and  national  instances  are  but  successive  links  in  a 
chain  of  jurisdictions  culminating  in  The  Hague.  When  the 
mixed  commission  constituted  in  virtue  of  the  Treaty  of  Wash- 
ington of  May  8,  1871,  allowed  certain  claims  presented  to  it, 
which  claims  had  been  passed  upon  by  the  District  and  Supreme 
Courts  of  the  United  States  and  adjudged  adversely  to  the 
claimants,  the  national  judgment  was  final  as  far  as  the  judi- 
cial power  and  judiciary  of  ohe  United  States  were  concerned. 
The  judgment  might  or  might  not  be  executed,  and  it  was 
proper  for  the  United  States  as  a sovereign  State  to  stay  or  to 
enforce  execution.  Congress  could  appropriate  the  amount 
involved  in  the  judgment  and  present  it  to  the  claimant  with- 
out affecting  the  validity  of  the  judgment,  or  Congress  might 
make  the  appropriation  and  distribution  of  the  sum  involved 
depend  upon  an  examination  of  the  claim  by  a mixed  com- 
mission and  the  finding  of  facts  sufficient  to  justify  payment. 
The  judgment  of  the  court  would  be  untouched  or  unreversed 
by  this  action.  The  commission  would  necessarily  consider 
the  judgment,  because  it  is  the  denial  of  justice  evidenced 
by  the  judgment  which  gives  rise  to  the  claim.  The  judgment 


INTEENA'flONAL  COURT  OF  PRIZE 


499 


of  the  court  might  be  the  subject  of  discussion  and  criticism, 
and  the  commission  might  content  itself  with  adopting  a dis- 
senting judgment  of  the  Supreme  Court  as  the  fullest  and 
most  adequate  expression  of  its  views.  For  example,  in  the 
well  known  case  of  the  Circassian  (2  Wallace  135),  decided  by 
the  Supreme  Court  in  1864,  holding  that  a blockade  is  not 
raised  by  land  occupation  of  the  port,  the  British  claimants 
presented  the  dissenting  opinion  of  Mr.  Justice  Nelson  as  a 
correct  exposition  of  the  law  applicable  to  the  case.  Not 
merely  the  judgment  of  the  court  but  the  opinions  of  the  judges 
were  involved.  The  Commissioner  for  the  United  States  like- 
wise considered  the  judgment  of  the  court  and  the  opinions 
of  the  judges,  and  he  expressly  stated  that  the  condemnation  of 
the  Carcassian  was  correct.^ 

The  Commission  (the  American  Commissioner  dissenting) 
made  awards  in  favor  of  all  the  claimants,  in  the  case  of  the 
Circassian  and  the  awards,  inconsistent  with  a solemn  decision 
of  the  Supreme  Court  of  the  United  States,  were  paid  in  full. 
We  may  maintain,  if  we  please,  that  the  judgment  of  the  court 
was  not  reversed  and  technicalLv  this  contention  is  correct; 
but  the  fact  remains  that  the  United  Sates  permitted  a judg- 
ment of  the  Supreme  Court  to  be  considered,  examined  and 
discredited  by  an  international  commission.  The  question 
involved  may  have  been  finally  settled  from  a national  stand- 
point, but  it  was  not  finally  settled  from  an  international 
point  of  view.  Qui  vult  decipi,  dedpiatur. 

Technically,  however,  the  judgment  of  the  Supreme  Court 
in  the  case  of  the  Circassian  was  legally  unreversed  and  as  such 
would  seem  to  be  binding  upon  the  Supreme  Court.  Such  was 
the  opinion  of  that  august  tribunal  in  the  case  of  the  Adula 
(176  U.  S.  361)  arising  out  of  the  recent  Spanish-American  War, 
for  it  followed  by  a majority  of  five  to  four  the  judgment  in  the 
Circassian  that  occupation  of  a blockaded  port  does  not  raise 
the  blockade.  The  award  of  a mixed  commission,  therefore, 
deals  simply  with  the  case  presented;  it  does  not  in  contem- 


‘ Moore’s  International  Arbitrations,  Vol.  IV,  p.  3923. 


500 


THE  HAGUE  PEACE  CONFERENCES 


plation  of  law  overrule  a decision  of  the  National  Court,  which 
stands  until  disregarded  and  overruled  by  the  National  Court 
in  question. 

The  Court  at  The  Hague  is  to  be  a Court  of  Appeal,  and,  from 
the  nature  of  things,  a Court  of  Appeal  as  a superior  institution 
reverses  as  of  course  the  decision  of  a tribunal  from  which  the 
appeal  is  lodged.  The  National  Court  is  required  to  transmit 
the  record  of  the  case  to  the  International  Bureau  at  The 
Hague  (Article  29)  and  the  International  Court  “takes  into 
consideration  in  arriving  at  its  decision  all  the  facts,  evidence 
and  oral  statements”  (Article  42)  and  may  “either  at  the 
request  of  one  of  the  parties,  or  on  their  own  initiative,” 
order  supplementary  evidence  to  be  taken  (Article  35).  The 
proposed  court  is,  indeed,  as  stated  in  the  British  project,  a 
High  Court  of  Appeal.  When  the  sentence  is  reached 

the  Court  transmits  to  the  National  Prize  Court  the  record  of 
the  case,  together  with  copies  of  the  various  decisions  arrived 
at  and  of  the  minutes  of  the  proceedings.  (Article  45.) 

What  is  the  effect  of  the  judgment  upon  the  National  Court? 
Article  8 speaks  in  no  uncertain  terms: 

If  the  court  pronounces  the  capture  of  the  vessel  or  cargo 
to  be  valid,  they  shall  be  disposed  of  in  accordance  with  the 
laws  of  the  belligerent  captor. 

If  it  pronounces  the  capture  to  be  null,  the  court  shall  order 
restitution  of  the  vessel  or  cargo,  and  shall  fix,  if  there  is  occa- 
sion, the  amount  of  the  damages.  If  the  vessel  or  cargo  has 
been  sold  or  destroyed,  the  court  shall  determine  the  compensa- 
tion to  be  given  to  the  owner  on  this  account. 

If  the  National  Court  pronounced  the  capture  to  be  null, 
the  court  can  only  be  asked  to  decide  as  to  the  damages. 

I quote  again  the  official  interpretation  of  this  article  from 
the  report  of  Professor  Renault: 

What  decisions  can  the  court  give? 

Three  hypotheses  may  be  foreseen. 

The  court  confirms  the  decision  of  the  National  Court  and, 
consequently,  declares  the  capture  of  the  vessel  or  cargo  to  be 
valid.  The  vessel  or  cargo  is  then  disposed  of  according  to  the 
laws  of  the  belligerent  captor,  which  are  the  only  ones  applicable 
in  this  case. 


INTEKNATIONAL  COURT  OF  PRIZE 


501 


The  court  decides  that  the  capture  is  null  and  void,  and, 
consequently,  orders  the  restitution  of  the  vessel  or  cargo  which 
are  found  to  have  been  unduly  seized.  It  may  happen  that  such 
restitution  will  be  sufl5cient  to  satisfy  the  demands  of  justice. 
It  may  also  happen  that  it  will  not  be  sufficient  because  an  un- 
just injury  has  been  caused  and  must  be  repaired.  This  will 
depend  on  the  circumstances,  which  may  be  very  varied.  The 
captain  of  the  seized  vessel  may  have  been  free  from  any  re- 
proach, or  he  may  have  given  rise  to  suspicions  through  his  own 
fault,  and  it  matters  not  if  he  justifies  his  conduct  in  the  end, 
he  will  have  to  bear  the  injurious  consequences  of  his  act.  The 
court  will  judge.  If  the  vessel  or  the  cargo  has  been  sold  or 
destroyed,  as  may  happen  in  many  cases,  especially  if  the  final 
decision  of  the  National  Court  has  been  executed  without  regard 
to  the  nonsuspensory  appeal,  as  was  said  above,  the  court 
determines  the  indemnity  to  be  granted  on  this  score  to  the 
owner  or  his  assigns. 

The  same  award  of  the  court  may  contain  decisions  of  both 
kinds,  validating,  for  instance,  the  capture  of  the  vessel  and 
annulling  the  seizure  of  the  cargo  in  whole  or  in  part. 

Finally,  one  may  suppose  that  the  capture  had  been  pro- 
nounced null  and  void  by  the  National  Court.  In  this  case  one 
can  only  imagine  an  appeal  being  made  because  the  party  ob- 
taining this  award  had  asked  damages  which  were  not  allowed 
him  or  which  were  allowed  him  only  to  an  extent  deemed  by 
him  insufficient.  He  asks  the  court  to  render  a decision  allow- 
ing him  damages,  and  the  court  is  competent  only  to  do  this. 
A captor  who  has  lost  his  suit  before  the  national  courts  of  his  na- 
tion can  obviously  not  appeal  to  the  international  jurisdiction.* 

In  a word,  the  Court  at  The  Hague  is  a Court  of  Appeal  to 
which  the  national  judgment  is  to  be  submitted  in  order  that 
the  case  may  be  examined  de  novo  upon  its  merits.  The  facts 
of  the  case  are  to  be  reconsidered  and  supplementary  evidence 
taken,  the  law  is  to  be  argued,  debated,  and  applied,  and  the 
decision  reached  upon  appeal  is  to  be  transmitted  to  the 
National  Court  with  instructions  to  proceed  in  accordance  with 
the  international  decision.  If  the  case  is  considered  de  novo, 
it  is  in  reality  a retrial  of  the  case,  not  an  appeal  in  the  strict 
and  technical  sense  of  the  word.  It  is  a resubmission  of  the 
case,  as  in  a proceeding  before  a mixed  commission,  with  the 


* Report  of  M.  Renault  to  the  Conference,  La  Deuxi^me  Conference 
Internationale  de  la  Paix,  1907  Actes  et  Documents,  Vol.  I,  pp.  192-193. 


502 


THE  HAGUE  PEACE  CONFERENCES 


original  or  certified  copy  of  the  record  of  the  National  Court  as 
evidence  both  of  the  law  and  of  the  facts.  The  convention 
speaks  merely  of  the  record,  but  it  is  clearly  within  the  power 
of  the  National  Court  to  submit  a certified  copy  of  the  record 
which  has  thus  the  same  effect  as  the  original. 

If  the  United  States  prefers  to  submit  the  judgment  of  the 
Supreme  Court  to  the  International  Court,  Congress  may,  by 
apt  legislation,  permit  the  appeal  from  the  District  Court,  in 
accordance  with  Article  6 which  provides  that 

The  municipal  law  of  the  belligerent  captor  shall  decide 
whether  the  case  may  be  brought  before  the  International  Court 
after  judgment  has  been  given  in  first  instance  or  only  after  an 
appeal. 

As  Congress  has  deprived  the  Circuit  Court  of  jurisdiction 
in  prize  cases,  it  may  provide  that  the  case  be  transmitted  to 
the  International  Court  without  involving  the  dignity  of  the 
Supreme  Court,  and  thus  lessen  the  volume  of  business  under 
the  weight  of  which  this  august  tribunal  staggers.  Such  action 
would  be  especially  appropriate  if  prize  law  is  international 
law  as  previously  pointed  out. 

The  judgment  of  the  International  Court  is  not  self-execut- 
ing, and  although 

the  Contracting  Powers  undertake  to  submit  in  good  faith  to 
the  decisions  of  the  International  Prize  Court  and  to  carry  them 
out  with  the  least  possible  delay  (Article  9), 

the  convention  prescribes  no  means  of  enforcing  the  interna- 
tional judgment.  It  is,  therefore,  no  subtlety  to  say,  when  a 
decision  is  reached  by  international  authorities  and  our  country 
has  agreed  in  advance  to  excute  the  decision,  that  the 
decision  so  rendered  is  executed  in  conformity  with  the  laws 
of  the  United  States,  and  is  not  the  intervention  of  a foreign 
jurisdiction  or  of  a foreign  sheriff  or  marshal.  I do  not  dis- 
guise the  gravity  of  the  situation,  but  I hope  the  convention 
may  be  ratified,  because  it  marks  a great  progress. 


INTERNATIONAL  COURT  OF  PRIZE 


503 


6.  The  Appointment  of  Judges  and  the  Organization 
OF  THE  Court 

Having  thus  considered  the  origin,  nature,  the  purpose  and 
jurisdiction  of  the  court,  it  is  necessary  to  discuss  briefly  its 
composition,  that  is  to  say,  the  method  of  appointing  the 
judges  and  thus  constituting  the  court. 

The  court  is  to  consist  of  judges,  trained  in  international 
law  and  in  maritime  law,  to  be  chosen  from  those  who 
are  capable  of  admission  to  the  highest  magistracy  of  their 
respective  countries,  or  to  be  composed  of  teachers  of  law  in 
the  higher  institutions  of  the  various  countries  (Article  10.) 
This  latter  provision  was  put  in  especially,  if  I may  betray  a 
little  confidence,  in  order  to  secure  the  services  of  such  men  as 
Renault,  de  Martens,  and  Professor  Lammasch,  who  occupy 
chairs  in  the  leading  universities  of  their  respective  countries. 
Admitting  that  competent  persons  are  to  be  chosen,  how  are 
they  to  be  chosen?  The  Conference,  after  much  doubt  and 
hesitancy,  and  amid  great  opposition,  finally  reached  a con- 
clusion. It  was  felt  impossible  to  have  a court  composed  of 
a judge  for  each  State,  for  that  would  be  a judicial  assembly, 
not  a court.  The  moment  it  was  proposed  to  reduce  the 
number,  the  country  that  felt  itself  excluded  maintained  the 
legal  equality  of  the  State  and  insisted  that  any  provision 
which  would  exclude  it  would  be  an  attack  upon  this  equality. 
For  example,  the  first  delegate  from  Santo  Domingo  said  to 
me  personally: 

I will  not  be  a party  to  any  convention  which  does  not  rec- 
ognize the  same  right  in  my  country  to  a seat  in  the  court  as  is 
recognized  to  Great  Britain;  not  merely  a right,  but  the  exercise 
of  that  right. 

The  majority  fortunately  took  note  of  historical  facts  as  they 
exist,  rather  than  excessive  legal  theory  which  is  largely  a fiction, 
with  the  result  that  the  court  is  composed  of  fifteen  judges, 
and,  of  these  fifteen,  eight  are  to  be  selected  from  the  following 
countries : Germany,  United  States,  Austria-Hungary,  France, 
Great  Britain,  Italy,  Japan  and  Russia.  The  other  judges 


504 


THE  HAGUE  PEACE  CONFERENCES 


composing  the  fifteen  are  to  be  selected  at  the  same  time  as 
these  others  for  the  full  period  of  six  years,  but  they  are  to  be 
called  upon  to  serve  for  a lesser  period,  some  four  years,  some 
two  years,  some  one  year,  and  some  are  only  to  be  called  into 
the  court  when  their  country  has  a case  before  it.  We  may 
consider  this  provision  as  unsatisfactory.  It  is;  it  is  arbitrary. 
But  it  was  the  best  that  could  be  devised  in  order  to  bring 
about  substantial  unanimity.  The  large  Powers  would  not  be 
parties  to  the  court  or  consent  to  its  establishment  if  they 
were  not  permanently  represented  and  thus  form  a permanent 
nucleus.^  The  small  Powers,  after  great  argument  and  with 
no  little  misgiving,  finally  consented  to  accept  the  classifica- 
tion. It  is  a classification  based  upon  the  principle  of  popula- 
tion, of  industry,  of  commerce,  and  of  merchant  marine,  and 
if  the  convention  be  ratified  there  will  be  a body  of  fifteen 
trained  jurists,  nine  of  whom  will  form  a quorum,  and  eight  of 
these  nine  will  represent  the  great  maritime  nations  of  the 
world.  We  thus  have  the  unwonted  spectacle  of  belligerents 
submitting  the  validity  of  their  actions  affecting  neutral  Powers 
and  property  to  a court  composed  of  fifteen  judges,  thirteen 
of  whom  are  neutrals,  on  the  supposition  that  two  of  the  con- 
tracting parties  are  at  war.  Should  it  happen  that  a state  at 
war  is  not,  according  to  the  composition  of  the  court,  repre- 
sented, this  State  has  the  right  to  appoint  a judge  for  the  case, 
so  that  no  distinction  is  made  in  this  regard  between  large  or 
small  Powers.  In  order  that  the  organization  of  the  court  may 
be  made  clear,  I quote  without  comment  the  material  articles 
of  the  convention. 

Article  16 

If  a belligerent  Power  has,  according  to  the  rota,  no  Judge 
sitting  in  the  court,  it  may  ask  that  the  Judge  appointed  by 
it  should  take  part  in  the  settlement  of  all  cases  arising  from  the 
war.  Lots  shall  then  be  drawn  as  to  which  of  the  Judges  en- 
titled to  sit  according  to  the  rota  shall  withdraw.  This  arrange- 
ment does  not  affect  the  Judge  appointed  by  the  other  bellig- 
erent. 

' For  the  composition  of  the  court  during  the  life  of  the  convention,  see 
Vol.  II,  pp.  505-506. 


INTERNATIONAL  COURT  OF  PRIZE 


505 


Article  17 

No  Judge  can  sit  who  has  been  a party,  in  any  way  whatever, 
to  the  sentence  pronounced  by  the  national  courts,  or  has  taken 
part  in  the  case  as  counsel  or  advocate  for  one  of  the  parties. 

No  Judge  or  Deputy  Judge  can,  during  his  tenure  of  office, 
appear  as  agent  or  advocate  before  the  International  Prize 
Court,  nor  act  for  one  of  the  parties  in  any  capacity  whatever. 


Article  18 

The  belligerent  captor  is  entitled  to  appoint  a naval  officer 
of  high  rank  to  sit  as  Assessor,  but  with  no  voice  in  the  decision. 
A neutral  Power,  which  is  a party  to  the  proceedings  or  whose 
subject  or  citizen  is  a party,  has  the  same  right  of  appointment; 
if  as  the  result  of  this  last  provision  more  than  one  Power  is 
concerned,  they  must  agree  among  themselves,  if  necessary  by 
lot,  on  the  officer  to  be  appointed. 

Article  19  * 

The  court  elects  its  President  and  Vice-President  by  an 
absolute  majority  of  the  votes  cast.  After  two  ballots,  the  elec- 
tion is  made  by  a bare  majority,  and,  in  case  the  votes  are  equal, 
by  lot. 


Article  20 

The  Judges  of  the  International  Prize  Court  are  entitled 
to  traveling  allowances  in  accordance  with  the  regulations  in 
force  in  their  own  country,  and  in  addition  receive,  while  the 
court  is  sitting  or  while  they  are  carrying  out  duties  conferred 
upon  them  by  the  court,  a sum  of  100  Netherland  florins  per 
diem. 

These  payments  are  included  in  the  general  expenses  of  the 
court  dealt  with  in  Article  47,  and  are  paid  through  the  Inter- 
national Bureau  established  by  the  Convention  of  the  twenty- 
ninth  July,  1899. 

The  Judges  may  not  receive  from  their  own  Government 
or  from  that  of  any  other  Power  any  remuneration  in  their 
capacity  of  members  of  the  court. 


Article  21 

The  seat  of  the  International  Prize  Court  is  at  The  Hague 
and  it  cannot,  except  in  the  case  of  force  majeure,  be  transferred 
elsewhere  without  the  consent  of  the  belligerents. 


506 


THE  HAGUE  PEACE  CONFERENCES 


Article  22 

The  Administrative  Council  fulfills,  with  regard  to  the  Inter- 
national Prize  Court,  the  same  functions  as  to  the  Permanent 
Court  of  Arbitration,  but  only  Representatives  of  Contracting 
Powers  will  be  members  of  it. 

Article  23 

The  International  Bureau  acts  as  registry  to  the  Interna- 
tional Prize  Court  and  must  place  its  offices  and  staff  at  the  dis- 
posal of  the  court.  It  has  charge  of  the  archives  and  carries 
out  the  administrative  work. 

The  Secretary-General  of  the  International  Bureau  acts 
as  Registrar. 

The  necessary  secretaries  to  assist  the  Registrar,  translators 
and  shorthand  writers  are  appointed  and  sworn  in  by  the  court. 

Article  24 

The  court  determines  which  language  it  will  itself  use  and 
what  languages  may  be  used  before  it,  but  the  official  language 
of  the  national  courts  which  have  had  cognizance  of  the  case 
may  always  be  used  before  the  court. 

Article  25 

Powers  which  are  concerned  in  a case  may  appoint  special 
agents  to  act  as  intermediaries  between  themselves  and  the 
court.  They  may  also  engage  counsel  or  advocates  to  defend 
their  rights  and  interests. 

Article  26 

A private  person  concerned  in  a case  will  be  represented 
before  the  court  by  an  attorney,  who  must  be  either  an  advocate 
qualified  to  plead  before  a Court  of  Appeal  or  a High  Court 
of  one  of  the  Contracting  States,  or  a lawyer  practicing  before 
a similar  court,  or  lastly,  a professor  of  law  at  one  of  the  higher 
teaching  centers  of  those  countries. 

The  judges  are,  therefore,  to  be  trained  in  maritime  law; 
they  shall  not  have  taken  any  part  in  the  decision  of  the 
National  Court;  they  receive  compensation  when  actually 
engaged  in  the  performance  of  their  judicial  duties;  they  are 
forbidden  to  receive  any  compensation  as  judges  either  from 
their  own  or  from  a foreign  government.  The  court  thus  con- 
stituted is,  in  the  highest  sense  of  the  word,  a judicial  tribunal. 


INTERNATIONAL  COURT  OF  PRIZE 


507 


The  presence  of  naval  offices  caused  much  debate.  The 
German  project  made  the  high  naval  officers  members  of  the 
court,  but,  as  Mr.  Choate  aptly  remarked,  it  was  the  duty  of  the 
naval  officers  to  supply  cases,  not  to  decide  them. 

And  lastly,  as  to  the  equally  important  question,  what  ele- 
ment shall  enter  into  the  composition  of  the  court,  whether 
it  be  permanent  or  temporary.  It  is  most  earnestly  contended 
on  the  part  of  several  nations  that  that  court  should  consist  only 
of  learned  jurists  and  no  other  element  should  enter  into 
its  composition,  and  we  are  one  of  the  nations  who  are  strongly 
convinced  of  that  view.  A court  is  a court,  and  a jurist  is  a 
jurist,  and  in  our  judgment  the  introduction  of  any  other  ele- 
ment than  jurists  tends  to  detract  to  that  extent  from  the  true 
judicial  character  which  the  tribunal  should  possess.  On  the 
other  hand  it  is  claimed,  with  equal  confidence  and  earnestness, 
that  it  should  consist  in  part,  at  least,  of  admirals  who  are 
not  jurists,  and  do  not  claim  to  be,  but  who  are  justly  claimed 
to  have  special  qualities  and  skill  to  contribute  to  the  solution 
of  maritime  and  prize  questions.  Now  while  we  cannot  consent 
to  accept  that  method  of  constituting  a court,  is  there  not  an 
approach  to  it  which  may  satisfy,  approximately  at  least,  the 
claims  of  both  contending  parties?  I think  myself  the  impor- 
tance of  the  claims  of  those  who  contend  for  the  introduction  of 
admirals  or  naval  experts  as  a component  part  of  the  court  is 
greatly  overestimated.  If,  as  Monsieur  Kriege  of  the  German 
delegation,  concedes,  the  two  admirals  appointed  by  the  con- 
tending belligerents  should  neutralize  each  other,  it  might  be 
a useful  and  interesting  contribution  by  belligerents  to  neutral- 
ity, but  would  it  really  do  any  good?  If  each  admiral,  sitting 
at  either  end  of  the  court,  is  to  neutralize  or  kill  the  other  off, 
why  have  them  at  all?  Will  it  not  simply  end  in  their  mutual 
slaughter  without  adding  any  new  life,  strength  or  vigor  to  the 
court?  Why  put  them  up  upon  such  an  exalted  bench  for  the 
mere  purpose  of  shooting  each  other  down? 

And  if,  as  Monsieur  de  Martens  of  the  Russian  delegation, 
has  insisted,  it  is  necessary  to  have  the  presence  in  the  tribunal 
of  experienced  admirals  or  learned  naval  experts,  without  whose 
advice  and  concurrence  the  decisions  of  the  court  cannot  be 
reached,  is  it  absolutely  necessary  to  give  them  seats  upon  the 
exalted  bench  itself  and  will  not  chairs  placed  a little  lower 
satisfy  all  the  necessities  and  reasonable  demands  of  the  occa- 
sion? May  they  not  be  present,  not  absolutely  as  judges  to 
give  the  decision,  but  as  advisers  without  whose  full  advice  no 
decision  can  be  rendered?  No  one  would  claim  that  they  should 
be  present  as  expert  witnesses  to  be  examined  and  cross-exam- 


508 


THE  HAGUE  PEACE  CONFERENCES 


ined.  But  they  would  be  in  the  highest  degree  useful  as  skilled 
experts  with  the  same  authority  as  the  judges  to  examine  and 
cross-examine  the  witnesses  and  to  collate  and  arrange  the 
proofs.  Would  it  not  also  be  entirely  practicable  to  admit 
them  to  the  consultations  of  the  secret  chamber  of  the  judges 
and  to  provide  that  no  decision  should  be  rendered  until  they 
had  been  admitted  to  such  consultations  and  fully  maintained 
their  views 

The  result  of  profound  and  illuminating  discussion  is  a Per- 
manent Court, — permanent  in  the  sense  that  it  does  not  need 
to  be  constituted  for  each  case  or  war, — ready  to  meet  at  The 
Hague,  and  to  decide  impartially  and  under  a sense  of  judicial 
responsibility  any  questions  of  maritime  law  properly  sub- 
mitted to  it.  This  is,  without  possibility  of  contradiction, 
the  greatest  step  hitherto  taken  for  the  protection  of  the  legiti- 
mate interests  of  neutrals  and  of  neutral  property. 

Without  discussing  further  the  details  of  the  convention, 
which  are  of  value  for  the  present  purpose  only  as  they  explain 
the  nature  of  the  proposed  institution,  I quote  the  opinion  of 
the  President  in  his  recent  message  to  Congress : 

A further  agreement  of  the  first  importance  was  that  for  the 
creation  of  an  International  Prize  Court.  The  constitution, 
organization  and  procedure  of  such  a tribunal  were  provided  for 
in  detail.  Anyone  who  recalls  the  injustices  under  which  this 
country  suffered  as  a neutral  power  during  the  early  part  ofthe 
last  century  can  not  fail  to  see  in  this  provision  for  an  Interna- 
tional Prize  Court  the  great  advance  which  the  world  is  making 
towards  the  substitution  of  the  rule  of  reason  and  justice  in  place 
of  simple  force.  Not  only  will  the  international  prize  court 
be  the  means  of  protecting  the  interests  of  neutrals,  but  it  is  in 
itself  a step  towards  the  creation  of  the  more  general  court  for 
the  hearing  of  international  controversies  to  which  reference  has 
just  been  made.  The  organization  and  action  of  such  a prize 
court  can  not  fail  to  accustom  the  different  countries  to  the 
submission  of  international  questions  to  the  decision  of  an  inter- 
national tribunal,  and  we  may  confidently  expect  the  results 
of  such  submission  to  bring  about  a general  agreement  upon  the 
enlargement  of  the  practice. 

‘ La  Deuxieme  Conference  Internationale  de  la  Paix,  1907,  First  Com- 
mission, Second  Sub-Commission,  3d  Session,  July  11,  1907. 


INTERNATIONAL  COURT  OF  PRIZE 


509 


7.  The  American  Forerunner  of  the  International 
Prize  Court 

It  may  not  be  inappropriate  to  state,  in  conclusion,  that 
the  establishment  of  an  International  Court  of  Prize  is  but  an 
imconscious  imitation,  as  in  the  case  of  the  Court  of  Arbitral 
Justice,  of  the  example  set  by  the  United  States,  which  found 
it  necessary  to  establish  a Supreme  Court  of  Prize  to  settle  the 
conflicts  of  decision  in  such  matters  arising  out  of  the  existence 
of  prize  courts  in  the  thirteen  original  States. 

The  broad  mind  of  Washington  foresaw  the  necessity  of  a 
central  authority  in  matters  of  prize,  and  in  a letter  to  Con- 
gress, dated  November  11,  1775,  from  his  headquarters  in 
Cambridge,  he  said : 

Should  not  a court  be  established  by  authority  of  Congress, 
to  take  cognizance  of  prizes  made  by  the  Continental  vessels? 
Whatever  the  mode  is,  which  they  are  pleased  to  adopt,  there 
is  an  absolute  necessity  of  its  being  speedily  determined  on.* 

Congress,  on  November  25,  1775,  acted  by  recommending 
the  several  States  to  erect  prize  courts  and  vested  an  appeal 
in  Congress. 

That  in  all  cases  an  appeal  shall  be  allowed  to  the  Congress, 
or  such  person  or  persons  as  they  shall  appoint  for  the  trial  of 
appeals,  provided  the  appeal  be  demanded  within  five  days 
after  definitive  sentence,  and  such  appeal  be  lodged  with  the 
secretary  of  Congress  within  forty  days  afterwards,  and  provided 
the  party  appealing  shall  give  security  to  prosecute  the  said 
appeal  to  effect,  and  in  case  of  the  death  of  the  secretary  during 
the  recess  of  Congress,  then  the  said  appeal  to  be  lodged  in  Con- 
gress within  twenty  days  after  the  meeting  thereof.^ 

On  learning  of  this  action,  Washington  wrote: 

The  resolves  relative  to  captures  made  by  Continental  armed 
vessels  only  want  a court  established  for  trial  to  make  them 
complete.  This,  I hope,  will  be  soon  done,  as  I have  taken  the 
liberty  to  urge  it  often  to  Congress. 

* Writings  of  Washington,  ed.  Sparks,  III,  154,  155;  Essays  in  the  Con- 
stitutional History  of  the  United  States,  ed.  by  J.  Franklin  Jameson,  p.  7. 

* Jour.  Cong.,  I,  184. 


510 


THE  HAGUE  PEACE  CONFERENCES 


The  Congress  moved  slowly,  and  it  was  not  until  January 
15,  1780,  that  the  court  was  established.  The  importance,  if 
not  the  immediate  necessity,  of  the  subject  was  recognized,  but 
it  seemed  proper  to  provide  for  the  court  in  the  Articles  of 
Confederation.  Article  9 dealt  with  the  subject  and  was 
agreed  upon  in  1777,  but  the  articles  as  a whole  were  not 
ratified  until  March  1781.  Congress,  therefore,  established  the 
court  without  waiting  for  the  final  approval  of  the  Articles  of 
Confederation,  moved  thereto  by  a famous  controversy  be- 
tween Connecticut,  Pennsylvania  and  the  Federal  authorities. 

In  September,  1778,  Gideon  Olmstead,  of  Connecticut,  and 
three  associates  were  captured  by  the  British  and  carried  to 
Jamaica,  where  they  were  put  on  board  the  sloop  Active,  bound 
for  New  York  with  a cargo  of  supplies,  and  forced  to  assist  in 
the  navigation  of  the  vessel.  They  rose  upon  the  master  and 
crew,  took  possession  of  the  sloop,  and  steered  for  Little  Egg 
Harbor.  When  in  sight  of  land  they  were  forcibly  taken  by 
the  armed  brig  Convention  which  belonged  to  Pennsylvania, 
and  carried  to  Philadelphia,  where  the  Active  was  libeled  as 
prize.  A claim  was  also  made  by  the  captain  of  a privateer 
cruising  in  concert  with  the  Convention.  The  case  was  tried 
in  the  State  Admiralty  Court  before  Judge  Ross  and  a jury, 
under  an  act  which  provided  that  the  finding  of  facts  by  the 
jury  should  be  final,  without  reexamination  or  appeal.  The 
Connecticut  captors  were  awarded  but  a fourth  of  the  prize,  the 
residue  being  divided  between  the  State  of  Pennsylvania  and 
the  officers  and  crew  of  the  Convention  and  the  privateer.  An 
appeal  was  taken  to  Congress,  and  referred  to  the  Standing 
Committee  of  Appeals,  and,  after  a full  argument,  the  action 
of  the  State  Court  was  reversed.  Judge  Ross  refused  to  recog- 
nize the  authority  of  Congress,  insisting  that  the  verdict  was 
conclusive,  and,  in  defiance  of  a writ  in  the  nature  of  an  injunc- 
tion, issued  by  the  Congressional  Committee,  ordered  the  sloop 
and  cargo  to  be  sold  and  the  proceeds  to  be  brought  into  Court. 
Thereupon  the  Committee  declared  that  they  were  unwilling 
to  resort  to  any  summary  proceedings  lest  consequences  might 
ensue  dangerous  to  the  peace  of  the  United  States,  but  firmly 
declined  to  hear  any  other  appeals  until  their  authority  as  a 
court  of  last  resort  should  be  so  settled  as  to  give  full  effect 
to  their  decrees.  The  matter  was  taken  up  by  Congress  and  a 
spirited  declaration  entered  upon  its  journals  in  support  of  its 
authority,  based  upon  the  argument  that  control  by  Appeal 
was  necessary  to  secure  a just  and  uniform  execution  of  the  law 
of  nations,  and  that  it  would  be  an  absurditv  to  trust  such 


international  court  of  prize 


511 


matters  to  the  accidental  verdicts  of  juries  in  the  State  Courts. 
Conferences  were  held  between  Congressional  and  Legislative 
Committees  with  little  effect,  and  so  far  as  the  rights  of  01m- 
stead  were  concerned,  the  decree  in  his  favor  remained  a hrutum 
fulmen  until,  many  years  afterwards  he  secured  the  favorable 
interposition  of  the  Supreme  Court  of  the  United  States.^ 

The  Constitutional  Convention  of  1787  recognized  the  ineffi- 
ciency of  the  Court  of  Arbitration  for  the  settlement  of  con- 
troversies between  the  States  “concerning  boundary,  jurisdic- 
tion or  any  cause  whatsoever”  and  the  Federal  Court  of  appeals 
for  Prize  Cases,  and  established  a Supreme  Court  in  which 
State  might  sue  State  for  causes  which,  if  arising  between 
sovereign  and  independent  States,  might  result  in  war. 

May  we  not  hope  that  a Supreme  Court  of  forty-six  nations 
may  do  for  the  community  of  nations  what  the  Supreme  Court 
of  the  United  States  does  and  has  done  for  forty-six  States? 

* Carson’s  Supreme  Court  of  the  United  States,  pp.  53-54.  United  States 
V.  Judge  Peters,  5 Cranch,  115  (1809). 


Post  Scbiptum.  The  Naval  Conference  at  London  adopted,  on  February 
26,  1909,  the  following  voeu  based  upon  Mr.  Root’s  proposal  as  printed  on 
p.  483,  supra. 

The  delegates  of  the  Powers  to  the  Naval  Conference,  taking  into  con- 
sideration the  difficulties  of  a constitutional  character  which,  as  regards 
certain  States,  stand  in  the  way  of  the  ratification  in  its  present  form  of  the 
convention  signed  at  The  Hague  on  the  eighteenth  October,  1907,  for  the 
establishment  of  an  International  Prize  Court,  agree  to  point  out  to  their 
respective  Governments  the  advantages  there  would  be  in  concluding  an 
arrangement  under  which  such  Governments  would  at  the  time  of  the  de- 
posit of  their  ratifications  have  the  right  to  append  thereto  a reservation 
to  the  effect  that  the  right  to  have  recourse  to  the  International  Prize 
Court  in  connection  with  the  decisions  of  their  national  courts  shall  take 
the  form  of  a direct  action  for  indemnity;  provided,  however,  that  the 
effect  of  this  reservation  shall  not  be  such  as  to  affect  the  rights  guaranteed 
by  the  said  convention  either  to  private  parties  or  to  their  Governments, 
and  that  the  terms  of  the  reservation  shall  be  made  the  subject  of  a subse- 
quent imderstanding  among  the  Powers  signatories  to  the  said  convention. 


CHAPTER  XI 


THE  OPENING  OF  HOSTILITIES,  THE  LAWS  AND 
CUSTOMS  OF  WAR  ON  LAND,  THE  RIGHTS  AND 
DUTIES  OF  NEUTRAL  POWERS  AND  PERSONS 
IN  CASE  OF  WAR  ON  LAND 

The  original  call  of  the  First  Conference  laid  stress  upon  the 
increasing  burden  imposed  upon  nations  by  the  constant 
increase  in  military  and  naval  armament,  and,  while  it  did 
not  suggest  disarmament,  the  circular  expressed  the  hope  that 
the  Conference  might  be  able  to  check  the  increase  of  arma- 
ment, and  by  conventional  agreement  limit  the  army  and  navy 
for  a period  of  years,  forbid  the  employment  in  warfare  of 
certain  means  and  instrumentalities  previously  permitted  or 
likely  to  be  created  by  inventive  genius,  and  universally  intro- 
duced into  armies  and  navies.  The  revised  circular,  while 
denouncing  the  increase  of  armament  nevertheless  laid  stress 
upon  the  means  whereby  war  might  be  prevented  and  thus 
enlarged  the  scope  of  the  Conference.  Public  opinion  eagerly 
seized  upon  the  first  circular  and  in  many  quarters  the  revised 
rescript  was  regarded  as  a retreat  from  the  advanced  position 
taken  in  the  first  call.  But  it  cannot  be  said  that  this  criticism 
is  wholly  correct,  because  by  the  second  circular  the  Confer- 
ence was  still  required  to  discuss  the  limitation  of  armaments, 
if  not  the  question  of  disarmament,  and,  in  addition,  to  con- 
sider the  means  whereby  international  conflicts  might  be 
settled  by  peaceful  means.  In  other  words,  the  purpose  of 
the  Conference  was  twofold,  to  devise  if  possible  means  where- 
by the  increase  of  military  charges  and  expenditure  might  be 
checked  and  warfare  regulated,  where  it  could  not  be  abolished, 

512 


LAWS  AND  CUSTOMS  OF  LAND  WARFARE 


513 


and  on  the  other  hand  to  provide  simple  and  adequate  machin- 
ery for  the  pacific  settlement  of  international  disputes.  The 
success  of  the  Conference  in  the  second  heading  has  already 
been  considered;  it  remains  to  discuss  the  various  proposals 
made  and  the  conventions  adopted  for  the  regulation  of  land 
and  naval  warfare  by  the  First  and  Second  Conference.  An 
examination  of  these  various  instruments  shows  that  they  are 
twelve  in  number  including  a signed  declaration  and  that  they 
fall  naturally  into  three  groups : 1,  three  conventions  relat- 
ing to  land  warfare;  2,  eight  conventions  regulating  naval 
warfare;  3,  a signed  declaration  concerning  aerial  warfare, 
and  certain  recommendations  of  the  conferences  concerning 
land  and  naval  warfare  which  will  be  mentioned  in  connection 
with  the  various  conventions  to  which  they  relate.  These 
conventions  will  be  considered,  with  the  single  exception  of 
the  Prize  Court,  already  discussed,  in  the  order  of  the  Final  Act. 

1.  The  Progress  of  Codification 

While  opinion  may  differ  as  to  the  value  of  the  conventions 
as  a whole,  there  can  be  no  doubt  that  they  mark  an  era  in  the 
history  of  international  law;  for  the  nations  of  the  world 
assembled  in  conference  undertook  seriously  and  consciously 
the  codification  of  the  laws  and  customs  of  war  in  order  to 
replace  confusion  by  precision,  so  that  by  defining  the  rights 
and  duties  of  belligerents  and  neutrals,  war  shall  not  as  hereto- 
fore sow  the  seeds  of  discord  which  may  ripen  into  future 
wars.  A distinguished  writer  on  international  law.  Dr. 
Oppenheim,  the  present  Whewell  professor  of  international 
law  at  Cambridge,  outlines  in  the  following  paragraphs  the 
origin  and  development  of  the  movement  for  codification 
which  culminated  in  the  First  Conference : 

The  lack  of  precision  which  is  natural  to  the  majority  of 
the  rules  of  the  Law  of  Nations  on  account  of  its  slow  and  grad- 
ual growth  has  created  a movement  for  its  codification.  The 
idea  of  a codification  of  the  Law  of  Nations  in  its  totality  arose 
at  the  end  of  the  eighteenth  century.  It  was  Bentham  who 
first  suggested  such  a codification.  He  did  not,  however,  pro- 
pose codification  of  the  positive  existing  Law  of  Nations,  but 


514 


THE  HAGUE  PEACE  CONFERENCES 


thought  of  a utopian  International  Law  which  could  be  the 
basis  of  an  everlasting  peace  between  the  civilized  Statesd 

Another  utopian  project  is  due  to  the  French  Convention, 
which  resolved  in  1792  to  create  a Declaration  of  the  Rights  of 
Nations  as  a pendant  to  the  Declaration  of  the  Rights  of 
Mankind  of  1789.  For  this  purpose  the  Abb4  Gr4goire  was 
charged  with  the  drafting  of  such  a declaration.  In  1795,  Abb4 
Gr6goire  produced  a draft  of  twenty-one  articles,  which,  how- 
ever, were  rejected  by  the  Convention,  and  the  matter  dropped.^ 

It  was  not  before  1861  that  a real  attempt  was  made  to 
show  the  possibility  of  a codification.  This  was  done  by  an 
Austrian  jurist,  Alfons  von  Domin-Petruch6vecz,  who  published 
in  that  year  at  Leipzig  a Pr4cis  d’un  Code  de  Droit  Interna- 
tional. 

In  1862,  the  Russian  Professor  Katschenowsky  brought  an 
essay  before  the  Juridical  Society  of  London  (Papers  II,  1863), 
arguing  the  necessity  of  a codification  of  International  Law. 

In  1863,  Professor  Francis  Lieber,  of  the  Columbia  College, 
New  York,  drafted  the  Laws  of  War  in  a body  of  rules  which  the 
United  States  published  during  the  Civil  War  for  the  guidance 
of  her  army. 

In  1868,  Bluntschli,  the  celebrated  Swiss  interpreter  of  the 
Law  of  Nations,  published  Das  moderne  Vdlkerrecht  der  civils- 
irten  Staatenals  Rechtsbuch  dargestellt.  This  draft  code  has 
been  translated  into  the  French,  Greek,  Spanish  and  Russian 
languages,  and  the  Chinese  Government  produced  an  official  Chi- 
nese translation  as  a guide  for  Chinese  officials. 

In  1872,  the  great  Italian  politician  and  jurist,  Mancini, 
raised  his  voice  in  favor  of  codification  of  the  Law  of  Nations 
in  his  able  essay,  Vocazione  del  nostro  secolo  per  la  riforma  e 
codificazione  del  diritto  delle  genti. 

Likewise  in  1872  appeared  at  New  York,  David  Dudley 
Field’s  Draft  Outlines  of  an  International  Code. 

In  1873  the  Institute  of  International  Law  was  founded  at 
Ghent  in  Belgium.  This  association  of  jurists  of  all  nations 
meets  periodically,  and  has  produced  a number  of  drafts  con- 
cerning various  parts  of  International  Law,  and  in  especial  a 
Draft  Code  of  the  Law  of  War  on  Land  (1880). 

Likewise  in  1873  was  founded  the  Association  for  the  Reform 
and  Codification  of  the  Law  of  Nations,  which  also  meets  period- 
ically and  which  styles  itself  now  the  International  Law  Asso- 
ciation. 

^See  Bentham’s  Works,  ed.  Bowring,  VIII,  p.  537;  Nys.  in  The  Law 
Quarterly  Review,  XI,  (1885),  p.  225. 

*See  Rivier’s  Droit  des  Gens,  I,  p.  40,  where  the  full  text  of  these 
twenty-one  articles  is  given.  They  do  not  contain  a real  code,  but  certain 
principles  only. 


LAWS  AND  CUSTOMS  OF  LAND  WARFARE 


515 


In  1874  the  Emperor  Alexander  II  of  Russia  took  the  ini- 
tiative in  assembling  an  international  conference  at  Brussels 
for  the  purpose  of  discussing  a draft  code  of  the  Law  of  Nations 
concerning  land  warfare.  At  this  conference  jurists,  diplomat- 
ists, and  military  men  were  united  as  delegates  of  the  invited 
States,  and  they  agreed  upon  a body  of  sixty  articles  which  goes 
under  the  name  of  the  Declaration  of  Brussels.  But  the  Powers 
have  never  ratified  these  articles. 

In  1880  the  Institute  of  International  Law  published  its  Manuel 
des  Lois  de  la  Guerre  sur  Terre. 

In  1890  the  Italian  jurist  Fiore  published  his  II  diritto  in- 
ternazionale  codificato  e sua  sanzione  giuridica,’  of  which  a 
second  edition  appeared  in  1898. 

At  the  end  of  the  nineteenth  century  the  so-called  Peace 
Conference  at  The  Hague,  convened  on  the  personal  initiative 
of  the  Emperor  Nicholas  II  of  Russia,  has  shown  the  possibility 
that  parts  of  the  Law  of  Nations  may  well  be  codified.  Apart 
from  three  Declarations  of  minor  value  and  of  the  Convention 
concerning  the  adaptation  of  the  Geneva  Convention  to  naval 
warfare,  this  Conference  has  succeeded  in  producing  two  im- 
portant conventions  which  may  well  be  called  codes — namely, 
first,  the  Convention  for  the  Pacific  Settlement  of  International 
Disputes,  and,  secondly,  the  Convention  with  Respect  to  the 
Laws  and  Customs  of  War  on  Land.  Whereas  the  future  will 
still  have  to  show  whether  the  first-named  convention  will  be 
of  great  practical  importance,  there  can,  on  the  other  hand,  not 
be  denied  the  great  practical  value  of  the  second-named  con- 
vention. Although  the  latter  contains  many  gaps,  which  must 
be  filled  up  by  the  customary  Law  of  Nations,  and  although  it 
is  in  no  way  a masterpiece  of  codification,  it  represents  a model, 
the  very  existence  of  which  teaches  that  codification  of  parts 
of  the  Law  of  Nations  is  practicable,  provided  the  Powers  are 
seriously  inclined  to  come  to  an  understanding.  The  Hague 
Peace  Conference  has  therefore  made  an  epoch  in  the  history 
of  International  Law. 

Shortly  after  the  Hague  Peace  Conference  the  United  States 
of  America  took  a step  with  regard  to  sea  warfare  similar  to  that 
taken  by  her  in  1863  with  regard  to  land  warfare.  She  pub- 
lished on  June  27,  1900,  a body  of  rules  for  the  use  of  her  navy 
under  the  title  The  Laws  and  Usages  of  War  at  Sea— the 
so-called  United  States  Naval  War  Code.^  This  code,  which 

' It  will  be  observed  that  by  the  instructions  of  the  Secretary  of  State  the 
American  delegation  was  directed  to  present  the  so-called  United  States 
Naval  War  Code  of  June  27,  1900,  as  the  basis  of  discussion  and  model  of 
a Hague  conventionon  the  subject.  The  inability  of  the  Conference  to  agree 
upon  many  matters  included  in  the  naval  war  code  showed  that  the  subject 
did  not  seem  ripe  for  codification  and  the  American  delegation  requested 


516 


THE  HAGUE  PEACE  CONFERENCES 


was  drafted  by  Captain  Charles  H.  Stockton,  of  the  United 
States  Navy,  contains  fifty-five  articles  which  are  divided  into 
nine  sections  under  the  following  titles : Hostilities;  Belligerents; 
Belligerent  and  Neutral  Vessels;  Hospital  Ships — the  Ship- 
wrecked, Sick,  and  Wounded;  The  Exercise  of  the  Right  of 
Search;  Contraband  of  War;  Blockade;  The  Sending  in  of 
Prizes;  Armistice,  Truce,  and  Capitulations,  and  Violations  of 
Laws  of  War.  I have  no  doubt  that  this  American  code  will 
be  the  starting-point  of  a movement  for  a Naval  War  Code  to 
be  generally  agreed  upon  by  the  Powers,  similar  to  the  Hague 
Regulations  concerning  land  warfare.* 

Passing  now  to  the  codification  of  the  laws  of  land  warfare,  it 
will  be  seen  that  the  subject  is  dealt  with  in  three  conventions : 
1,  the  convention  relating  to  the  opening  of  hostilities;  2,  the 
convention  concerning  the  laws  and  customs  of  land  warfare, 
with  an  annex  in  the  form  of  regulations;  3,  the  convention 
concerning  the  rights  and  duties  of  neutral  powers  and  persons 
in  case  of  land  warfare.  Of  each  of  these  in  turn : 

2.  The  Opening  of  Hostilities 

It  is  needless  to  state  that  the  outbreak  of  hostilities  is  a 
very  serious  matter;  for  it  converts  peaceful  subjects  and  citi- 
zens into  enemies,  and  by  a stroke  of  the  pen  or  by  word  of 
mouth  ends  all  non-hostile  relations  between  the  subjects  or 
citizens  of  the  belligerent  States.^  It  abrogates  or  suspends 
treaties  of  certain  kinds,  and  it  taxes  neutrals  with  burdens 
heavy  to  bear;  for  it  deprives  them  of  their  right  peaceably  to 
pursue  industry  and  commerce,  and  interferes  with  the  peace- 
ful and  orderly  business  of  the  world.  It  is,  therefore,  a matter 
of  great  importance  to  determine  when  this  hostile  relation 
begins,  not  so  much  in  the  interests  of  belligerents  because  they 
have  caused  the  outbreak  of  war  and  thus  subject  themselves 

and  received  permission  not  to  present  the  code.  The  discussions  of  the 
Conference  show  the  difficulty  of  reaching  an  agreement  in  naval  warfare 
where  nations  are  animated  by  the  desire  to  secure  international  recog- 
nition of  their  usages  and  customs  rather  than  by  mutual  renunciation  and 
conciliation  to  adopt  a code  in  the  interest  of  the  community  of  nations. 

* Oppenheim’s  International  Law,  Vol.  I,  p.  35. 

^ For  a careful  and  elaborate  discussion  of  the  effect  of  war  on  trade, 
see  Kershaw  v.  Kelsey,  100  Massachusetts  Reports,  561  (1868). 


OPENING  OF  HOSTILITIES 


517 


to  its  pains  and  penalties,  but  in  the  interest  of  neutrals;  for 
it  is  manifestly  unjust  that  strangers  to  the  controversy  who 
by  good  offices  and  mediation  may  have  sought  to  prevent  the 
outbreak  of  war  should  be  taxed  with  onerous  duties  and  penal- 
ized for  a violation,  in  ignorance  it  may  be,  of  a status  of  war, 
which  they  could  not  prevent.  Reason  and  humanity  there- 
fore conspire  to  determine  clearly,  and,  if  possible,  in  advance 
the  moment  when  the  peace  of  the  world  is  disturbed , as  the 
rights  of  belligerents  force  innocent  and  unoffending  neutrals 
to  renounce  their  rights  solely  and  exclusively  for  the  benefit  of 
warring  factions. 

It  is  useless  to  consider  the  history  of  the  practice  of  nations, 
because  nations  in  the  matter  of  war  have  been  a law  unto 
themselves  and  have  exercised  their  sovereign  right  to  declare 
and  wage  war  according  to  their  pleasure  and  convenience. 
It  may  be  said  further  that  war  is  a status  and  provable  as 
such,  whether  it  be  evidenced  by  a declaration  fixing  the  date 
or  whether  without  declaration  it  dates  from  the  first  hostile 
act,  or  finally  whether  it  be  notified  to  neutrals  by  a simple 
statement  of  its  existence.^ 

‘ In  deciding  the  Panama,  Locke,  J.,  said:  “The  Panama  sailed  from 
New  York  before  the  21st  of  April,  1898,  and  was  upon  the  high  seas  at  that 
time  and  at  the  time  of  capture.  The  fact  that  there  had  been  no  formal 
proclamation  or  declaration  of  war  before  she  had  sailed  or  at  the  time  she 
was  captured,  or  that  she  had  at  a recent  date  left  a port  of  the  United 
States,  cannot  be  considered  as  exempting  her  from  the  liability  of  an 
enemy’s  property  to  capture,  imless  coming  directly  within  the  language 
of  the  President’s  proclamation.  The  practice  of  a formal  proclamation 
before  recognizing  an  existing  war  and  capturing  enemy’s  property  has 
fallen  into  disuse  in  modern  times,  and  actual  hostilities  may  determine 
the  date  of  the  commencement  of  war,  although  no  proclamation  may 
have  been  issued,  no  declaration  made  or  no  action  of  the  legislative  de- 
portment of  the  government  had.  This  date  has  been  declared  bythe  act  of 
Congress  of  April  25, 1898,  and  by  the  proclamation  of  the  President  of  the 
next  day  to  have  been  April  21,  1898,  including  that  day,  so  that  any  Span- 
ish property  afloat,  captured  from  that  time,  became  liable  to  condemna- 
tion unless  exempt  by  the  executive  proclamation.” — The  Panama  87  Fed- 
eral Reporter,  927,  933  (1898).  Aflflrmed  on  Appeal,  The  Panamn,  176 
U.S.  535  (1899). 

For  a list  of  wars  begun  without  formal  declaration,  see  American 
Journal  of  International  Law  (1908),  Vol.  II.  pp.  57-62. 


518 


THE  HAGUE  PEACE  CONFERENCES 


The  question  whether  a nation  determined  to  make  war 
is  obliged  to  notify  its  adversary  before  beginning  hostilities, 
has  been  discussed  for  a long  time,  and  has  given  birth  not  only 
to  long  theoretical  discussions  but  to  frequent  and  bitter  contro- 
versies between  the  belligerents.  From  the  point  of  view  which 
we  must  assume  here,  it  would  be  as  vain  to  seek  what  has  been 
the  actual  practice  in  the  various  wars  since  the  beginning  of 
the  last  century,  as  it  would  be  to  determine  if  it  can  be  said 
that  there  is  according  to  the  positive  law  of  nations,  a law  upon 
this  subject.  We  need  only  ask  ourselves  if  a law  should  be 
enacted  and  in  what  terms.^ 

In  framing  any  general  rule  two  points  of  view  should  be 
borne  in  mind,  first,  the  declaration  of  war  to  the  belligerents, 
who  in  all  probability  are  prepared  for  the  outbreak  of  war,  and 
look  forward  to  its  declaration ; and  second,  the  notification  to 
neutral  States  in  order  that  they  may  inform  their  citizens  and 
subjects  and  by  a proclamation  of  neutrality  warn  them  of 
the  duties  incumbent  upon  them  by  international  law.  These 
two  matters,  although  connected,  are  nevertheless  distinct; 
because  the  declaration  of  war  creates  a hostile  relation  be- 
tween nation  and  nation,  w’hereas  the  notification  to  neutrals 
informs  them  that  the  status  created  by  war  exists.  Citizens 
or  subjects  of  a nation  are  bound  by  the  act  of  the  sovereign 
power,  and  their  rights  and  duties  are  measured  by  a declara- 
tion emanating  from  the  constituted  authority.  The  neutral 
on  the  contrary  has  no  connection  with  the  war,  and  is  not  a 
party  to  its  declaration.  The  act  of  the  belligerent  is  a uni- 
lateral act  as  far  as  the  neutral  is  concerned,  and  he  should  not 
be  taxed  with  the  duties  of  neutrality  before  definite,  precise 


^ M.  Renault’s  Report  to  the  Conference,  La  DeuxiSme  Conference  Inter- 
nationale de  la  Paix,  1907,  Actes  et  Documents,  Vol.  I,  p.  131. 

For  the  discussion  in  Commission,  see  La  Deuxieme  Conference  Inter- 
nationale de  la  Paix,  1907,  Vol.  Ill,  pp.  163-179.  | T' 

The  reader  who  desires  to  consider  this  subject  in  detail  is  referred  to  $ j 
Col.  Maurice’s  Hostilities  without  Declaration  of  War  from  1700  to  1870  f | 
(1883);  Maurel’s  Declaration  de  Guerre  (1907);  De  Bailleul’s  Hostilities  ||  | 
sans  Declaration  de  Guerre  (1907).  The  two  French  treaties  contain  elab-  | 
orate  bibliographies.  j 

Hall’s  International  Law  (5th  ed.),  pp.  377-385,  contains  an  admirable  k 8 
brief  history  of  the  practice  of  nations. 


OPENING  OP  HOSTILITIES 


519 


and,  if  possible,  official  information  be  given  him  of  the  exist- 
ence of  war.  The  convention  therefore  is  divided  into  two 
articles,  the  first  dealing  with  the  declaration  of  war  between 
belligerents;  and  the  second  prescribing  the  information  to  be 
given  to  neutrals  from  the  receipt  of  which  neutral  responsibil- 
ity begins. 

The  first  article  therefore  provides  that 

The  Contracting  Powers  recognize  that  hostilities  between 
themselves  must  not  commence  without  previous  and  explicit 
warning,  in  the  form  either  of  a reasoned  declaration  of  war 
or  of  an  ultimatum  with  conditional  declaration  of  war. 

An  analysis  of  its  wording  shows  that  the  Powers  recognize 
the  duty  as  existing  rather  than  created;  that  war  should  not 
commence  without  previous  and  explicit  warning; and  that  this 
notice  should  take  the  form  either  of  a reasoned  declaration  of 
war  or  of  an  ultimatum  with  conditional  declaration  of  war. 
In  other  words,  the  declaration  may  be  of  two  kinds,  either 
absolute,  in  which  case  the  war  dates  from  the  declaration, 
or  conditional,  in  which  case  the  war  commences  either  at 
the  expiration  of  the  time  fixed  in  the  ultimatum,  or  upon  the 
failure  to  perform  an  act  or  duty  within  the  time  specified.  It 
is  absolute  in  the  sense  that  the  date  specified  in  the  declara- 
tion creates  the  hostile  relation;  it  is  conditional  in  the  sense 
that  the  performance  of  the  act  or  duty  removes  the  cause  of 
the  war  and  obviates  the  necessity  of  a resort  to  arms. 

Various  attempts  were  made  at  the  Conference  to  prescribe 
a time  after  the  issue  of  the  declaration  and  before  which 
actual  hostilities  might  take  place ; but  the  Powers  felt  that  a 
preliminary  declaration  of  war  imposed  a sufficient  limit  upon 
their  sovereign  powers  and  were  therefore  unwilling  to  restrain 
themselves  from  acts  of  hostility  for  any  time  after  they  had 
determined  to  resort  to  arms.  It  will  be  noted  that  the  decla- 
ration and  the  ultimatum  require  a statement  of  the  reason  of 
the  war,  and  it  is  to  be  hoped  that  the  difficulty  of  a perfect 
justification  may  exercise  a restraining  influence  upon  pros- 
pective belligerents. 


520 


THE  HAGUE  PEACE  CONFERENCES 


The  second  paragraph  deals  as  has  been  said  with  the  notifi- 
cation to  neutrals,  and  is  worded  as  follows: 

The  existence  of  a state  of  war  must  be  notified  to  the  neutral 
Powers  without  delay,  and  shall  not  take  effect  in  regard  to 
them  until  after  the  receipt  of  a notification,  which,  may,  how- 
ever, be  given  by  telegraph.  Neutral  Powers,  nevertheless,  can- 
not rely  on  the  absence  of  notification  if  it  is  clearly  established 
that  they  were  in  fact  aware  of  the  existence  of  a state  of  war. 

An  analysis  of  its  provisions  shows  that  the  existence  of  war 
must  be  notified  without  delay  and,  as  in  the  case  of  the  declara- 
tion of  war,  it  was  attempted  to  fix  a limit  of  twenty-four  hours 
between  the  issue  of  the  declaration  and  the  beginning  of  war, 
so  it  was  sought  to  establish  a period  of  forty-eight  hours  be- 
tween the  receipt  of  the  information  to  neutrals  and  the  com- 
mencement of  neutral  duties.  The  Conference,  however,  was 
unwilling  to  accept  such  a limitation  upon  the  right  of  the 
belligerent,  even  in  behalf  of  the  neutral,  feeling  that  the  duty 
to  notify  neutral  powers  without  delay  was  a sufficient  con- 
cession to  the  interests  of  peace.  But  the  harshness  of  the 
provision  was  lessened  by  the  proviso  that  the  obligations  of 
neutrals  should  not  begin  until  the  receipt  of  the  notification, 
which  may,  however,  be  by  telegraph.  The  main  point  is  not 
that  the  neutral  shall  be  notified  in  any  particular  manner  or 
form,  but  that  the  notification  shall  actually  be  received; 
for  it  is  only  upon  notification  irrespective  of  the  means 
that  the  neutral  can  properly  be  taxed  with  responsibility. 
Therefore,  the  concluding  clause  of  the  article  provided  that 
the  neutral  powers  cannot  rely  upon  the  absence  of  notifica- 
tion, if  it  is  clearly  established  that  they  were  in  fact  aware 
of  the  existence  of  the  war. 

The  Convention  deals  with  international — that  is  external 
as  distinguished  from  national  or  internal  war;  for  it  is  not 
to  be  presumed  that  the  Powers  assumed  the  duty  of  notifying 
provinces  or  States,  about  to  appeal  to  arms,  of  the  status  of 
war.  The  declaration  does  not  apply  to  civil  war,  which  exists 
but  cannot  well  be  declared. 

As  was  said  by  Mr.  .Justice  Grier  in  The  Prize  Cases  ■} 

^ Reported  in  2 Black  635,  665,  et  seq.  (1862). 


OPENING  OF  HOSTILITIES 


521 


The  parties  belligerent  in  a public  war  are  independent  nations. 
But  it  is  not  necessary  to  constitute  war,  that  both  parties 
should  be  acknowledged  as  independent  nations  or  sovereign 
states.  A war  may  exist  where  one  of  the  belligerents  claims 
sovereign  rights  as  against  the  other.  Insurrection  against 
a government  may  or  may  not  culminate  in  an  organized  rebel- 
lion, but  a civil  war  always  by  insurrection  against  the  lawful 
authority  of  the  Government.  A civil  war  is  never  solemnly 
declared;  it  becomes  such  by  its  accidents— the  number,  power, 
and  organization  of  the  persons  who  originate  and  carry  it  on. 
When  the  Party  in  rebellion  occupy  and  hold  in  a hostile  manner 
a certain  portion  of  territory;  have  declared  their  independence; 
have  cast  off  their  allegiance;  have  organized  armies;  have  com- 
menced hostilities  against  their  former  sovereign,  the  world 
acknowledges  them  as  belligerents,  and  the  contest  is  a war; 
they  claim  to  be  in  arms  to  establish  their  liberty  and  independ- 
ence, in  order  to  become  a sovereign  state,  while  the  sovereign 
party  treats  them  as  insurgents  and  rebels  who  owe  allegiance, 
and  who  should  be  punished  with  death  for  their  treason. 

As  a civil  war  is  never  publicly  proclaimed  conomine  against 
insurgents,  its  actual  existence  is  a fact  in  our  domestic  history 
which  the  court  is  bound  to  notice  and  to  know.  The  true  test 
of  its  existence,  as  found  in  the  writings  of  the  pages  of  the  com- 
mon law,  may  be  thus  summarily  stated:  “When  the  regular 
course  of  justice  is  interrupted  by  revolt,  rebellion,  or  insurrec- 
tion, so  that  the  Courts  of  Justice  cannot  be  kept  open,  civil 
war  exists  and  hostihties  may  be  prosecuted  on  the  same  footing 
as  if  those  opposing  the  Government  were  foreign  enemies 
invading  the  land.” 

By  the  Constitution,  Congress  alone  has  the  power  to  declare 
a national  or  foreign  war.  It  can  not  declare  war  against  a 
State,  or  any  number  of  States  by  virtue  of  any  clause  in  the 
Constitution.^ 

' For  the  beginning  and  ending  of  the  Civil  War  in  the  different  states 
of  the  union,  see  The  Protector,  12  Wall,  700  (1871);  Brown  v.  Hialts,  15 
Ibid.,  177  (1872);  Adger  v.  Alston,  Ibid.,  555  (1872);  Batesville  Institute 
V.  Kauffman,  18  Ibid.,  151  (1873). 

The  following  passage  from  a well-known  case  of  the  Supreme  Court  is 
not  without  interest  to  the  Americans  as  showing  the  action  of.  the  Mother 
Country  to  the  colonies: 

The  Parliament  of  Great  Britain  by  statute  (16  Geo.  Ill,  c.  5,  1776) 
declared  that  the  vessels  and  cargoes  belonging  to  the  people  of  Virginia 
and  the  twelve  other  colonies  found  and  taken  on  the  high  seas  should 
be  liable  to  seizure  and  confiscation  as  the  property  of  open  enemies,  and 
that  the  marines  and  crew  should  be  taken  and  considered  as  having  vol- 
untarily entered  into  the  service  of  the  King  of  Great  Britain,  and  that  the 
killing  and  destroying  the  persons  and  property  of  the  Americans  before 


522 


THE  HAGUE  PEACE  CONFERENCES 


It  must  be  admitted  that  the  convention  is  very  modest, 
for  it  leaves  the  Powers  free  to  declare  war  at  their  pleasure, 
provided  only  that  the  pretext  be  capable  of  formulation. 
But  it  does  in  no  uncertain  measure  safeguard  the  rights  of 
neutrals  and  specifies  the  exact  time  at  which  they  are  to  be 
taxed  with  responsibility.  In  so  far,  it  is  a positive  gain  and 
therefore  worthy  of  commendation.  It  will  be  noted  that 
the  provisions  of  the  convention  are  limited  to  Contracting 
Powers. 

The  convention  does  not  change  the  nature  of  war  and  its 
declaration  by  the  United  States,  for  it  is  provided  by  the 
Constitution  that  Congress  shall  have  power  to  declare  war 
(Article  I,  section  8,  clause  10).  The  President  is  not  author- 
ized by  the  convention  to  declare  war,  for  this  is  a constitu- 
tional prerogative  of  Congress ; but  it  does  bind  the  President 
after  the  declaration  of  war  by  Congress,  to  communicate  the 
declaration  not  merely  to  the  belligerent  but  to  neutral  powers. 
The  declaration  of  war  is  properly  regarded  as  a national  act 
and  to  be  valid  must  be  declared  according  to  the  laws  and 
constitutions  of  the  Contracting  States.  The  international 
effect  of  the  war,  however,  dates  from  the  communication 
of  the  declaration  and  its  notification  to  the  neutral  powers. 

3.  The  Convention  Respecting  the  Laws  and  Customs 
OF  War  on  Land 

It  may  seem  strange  that  at  a peace  conference  so  much  of 
the  time  was  taken  up  with  the  discussion  of  warfare  on  land 
and  warfare  on  sea,  and  that  so  many  conventions  agreed  to 
by  the  Conference  and  proposed  to  the  various  powers  for 
ratification  should  deal  with  the  subject  of  land  and  naval 
warfare.  This  fact  seems  a contradiction  in  terms,  for 

the  passing  of  the  act  was  just  and  lawful. — Per  Chase,  J.,  in  Ware  v. 
Hylton,  3 Dallas,  199,  328  (1796). 

President  Lincoln’s  proclamation  of  April  19,  1861,  declaring  a blockade 
of  the  coasts  of  the  seceding  states  was  in  effect  recognition  of  the  bellig- 
erency of  the  Southern  States,  and  the  Proclamation  of  Neutrality  of  Great 
Britain,  May  14,  1861,  was  justified  in  law  as  well  as  in  fact. 


LAWS  AND  CUSTOMS  OF  LAND  WARFARE 


523 


although  the  First  Conference  was  not  officially  designated  a 
peace  conference,  it  was  by  general  consent  referred  to  as 
such,  and  the  Second  Conference  adopted  the  name  long  in 
advance.  The  fact  that  the  peace  conferences  have  dealt 
so  largely  with  warfare  has  discouraged  the  pacifists,  who 
believe  that  these  conferences,  peaceful  in  their  origin,  should 
meet  to  discuss  merely  the  means  by  which  peace  may  be 
preserved,  and  if  broken,  restored.  That  would  be  an  ideal 
Conference,  but  we  do  not  live  in  an  ideal  world.  We  live  in  a 
world  in  which  war  has  frequently  been  the  rule  and  peace  the 
exception.  To  be  of  practical  importance,  therefore,  the  labors 
of  the  Conference  must  bear  some  relation  to  the  needs  of  the 
immediate  present,  and  by  minimizing  the  hardship  incident 
to  warfare,  look  forward  to  a time  when  the  resort  to  arras 
will  not  be  so  frequent  or  seemingly  so  necessaiy. 

It  is  axiomatic  that  war  should  be  divested  of  its  unnecessary 
hardships,  for  it  is  barbarous  enough  at  best.  It  is  not  only 
advisable  but  necessary  to  minimize  in  advance  its  dangers 
and  by  a codification  to  give  clearness  and  precision  to  its 
rules  and  regulations.  It  is  frequently  said  that  the  ameliora- 
tion of  warfare  does  not  produce  practical  good;  that  the  more 
barbarous  the  proceedings  the  less  danger  there  will  be  of  a 
resort  to  war.  If  that  were  so  the  savage  state  of  man  should 
indeed  be  the  ideal  one.  If  that  were  so  the  brutality  and 
license  of  the  Thirty  Years’  War  should  be  the  halcyon  period 
to  which  the  reformer  should  turn  his  gaze.^  The  poisoning  of 

* Until  very  recent  times  there  is  great  ground  for  distrusting  the  accuracy 
of  the  figures  which  purport  to  represent  the  amount  of  slaughter  at 
battles  and  sieges.  It  is  said,  however,  that  the  population  of  Magdeburg, 
which  was  taken  by  storm,  was  reduced  from  25,000  to  2700.  The  siege 
is  described  by  an  English  eyewitness,  whose  accoxmt  of  it,  generally 
regarded  as  authentic,  constitutes  those  “Memoirs  of  a Cavalier”  which  are 
generally  embodied  in  the  works  of  Defoe.  The  writer  states  that  out  of 
25,000  men,  and  some  said  30,000,  there  was  not  after  the  storm  a soul  to 
be  seen  alive  till  the  flames  drove  those  that  were  hid  in  vaults  and  secret 
places  to  seek  death  in  the  streets  rather  than  perish  in  the  fire.  Of  these 
miserable  creatures  too  some  were  killed  by  the  fierce  soldiers,  but  at  last 
they  saved  the  lives  of  such  as  came  out  of  their  cellars  and  holes,  and  so 
about  2000  poor  desperate  creatures  were  left.  There  was  little  shooting. 
The  execution  was  all  cutting  of  throats  and  mere  house  murders.  Later 


524 


THE  HAGUE  PEACE  CONFERENCES 


streams,  the  taking  of  towns  by  assault,  the  massacre  of  pris- 
oners, the  violation  of  the  innocent,  should  therefore  be  looked 
upon  with  favor  and  not  condemned.  We  know,  however, 
that  the  mere  fear  of  danger  does  not  deter,  just  as  we  know 
that  the  fear  of  punishment  does  not  prevent  crime.  Strange 
as  it  may  seem,  we  also  know  that  severe  punishment  instead 
of  preventing  crime  leads  to  its  increase.  When  all  offenses  are 
punished  by  excessive  or  by  capital  punishment,  there  is  no 
check  upon  the  criminal  who  has  committed  a small  offense 
to  keep  him  from  committing  a larger  one,  because  he  is  not 
deterred  by  the  punishment  which  in  each  case  is  equally 
great.  If  the  danger  of  war  and  the  severity  of  warfare  do 
not  act  as  a deterrent  to  war,  it  is  nevertheless  humanitarian 
to  free  it  from  suffering  as  far  as  possible.  The  Red  Cross  Con- 
vention of  1864,  and  the  additional  Articles  of  1868,  while  they 
seem  to  legitimatize  warfare,  are  eminently  humanitarian  in 
their  nature  and  effect,  and  even  the  most  enlightened  who 
condemn  warfare  look  upon  these  conventions  as  marking 
great  progress.  It  is,  therefore,  from  this  point  of  view  that 
I propose  to  discuss  the  convention  regarding  the  rights  and 
duties  of  neutral  powers,  with  an  expression  of  regret  that  it 
is  still  necessary  to  consider  the  laws  and  customs  of  war  on 
land,  and  with  the  deeper  regret  that  it  is  necessary  to  consider 
the  subject  itself  at  all.  I would  much  prefer  that  the  appeal 
be  to  reason  before  the  sword  is  drawn,  rather  than  after  the 
sword  has  performed  its  bloody  mission ; but  we  live  in  a world 
of  reality,  and  we  cannot  close  our  eyes  to  that  fact. 

historical  information  tends  on  the  whole  to  relieve  the  memory  of  Coimt 
Tilly,  the  commander  of  the  besiegers,  from  the  infamy  which  has  hitherto 
attached  to  it;  but  all  sieges  in  that  day  were  to  the  last  degree  homicidal, 
and  there  is  a general  impression  that  the  peculiar  ferocity  of  the  soldiery 
after  the  capture  of  a town  by  storm  was  due  to  the  Tartars,  who  had  twice 
overrun  what  were  then  the  most  fertile  and  civilized  portions  of  the  world, 
and  who  never  spared  the  population  of  the  town  which  had  resisted  them. 
They  appear  to  have  considered  that  every  stratagem  and  every  degree 
of  bad  faith  was  justifiable  for  the  purpose  of  inducing  the  garrison  to 
surrender,  but  in  the  long  run  they  never  spared  any  man.  Nor  have  the 
countries  in  which  these  massacres  took  place  ever  wholly  recovered  from 
them. — Sir  Henry  S.  Maine’s  International  Law  (1888),  pp.  123-125. 


LAWS  AND  CUSTOMS  OF  LAND  WARFARE 


525 


The  project  upon  which  the  codification  of  1899  and  the 
revised  convention  of  1907  concerning  the  laws  and  customs 
of  war  on  land  is  based,  is  the  regulation  issued  in  the  year  1863 
by  President  Lincoln  for  the  government  of  armies  in  the  field. 
Dr.  Francis  Lieber,  by  birth  a German,  by  preference  an 
American,  a man  who  had  had  a long  and  varied  career,  serv- 
ing as  a private  soldier  upon  the  battlefield  of  Waterloo,  later 
in  the  cause  of  freedom  going  to  Greece,  for  many  years  an 
expounder  of  political  science  in  Charleston,  South  Carolina, 
and  finally  professor  in  Columbia  College,  in  the  City  of  New 
York.  Both  by  early  training  and  by  a lifetime’s  experience, 
he  was  qualified  to  codify  the  laws  and  customs  of  war  on  land. 
And  this  little  pamphlet  prepared  by  him,  accepted  by  Presi- 
dent Lincoln,  and  promulgated  for  the  guidance  of  the  armies, 
became  at  once  a recognized  text-book.  It  was,  I might  say, 
the  first  successful  attempt  to  codify  a branch  of  international 
law.  It  served  as  an  impetus  to  Professor  Bluntschli  who  pre- 
pared in  the  year  1868  his  codification  of  international  law.* 

In  1874  it  served  as  a basis  for  the  proceedings  of  the 
Conference  at  Brussels  called  for  the  purpose  of  codifying 
the  laws  and  customs  of  war.^  The  Conference  drafted  a 
series  of  rules  and  regulations  dealing  with  land  warfare,  but 
its  declaration  was  not  ratified  by  the  Powers.  In  the  year 

' In  the  letter  to  Dr.  Lieber  which  forms  the  preface  to  The  Modern  Inter- 
national Law  of  the  Civilized  States  in  the  form  of  a Code,  Bluntschli  says: 

‘Thr  glucklicher  Gedanke,  der  amerikanischen  Armee  ein  kurz  gefasstes 
Kriegsrecht  als  Instruction  ins  Feld  mitzugeben,  und  mit  den  Mahnungen 
des  Rechts  die  wilden  Leidenschaften  des  Krieges  moglichst  zu  zahmen, 
hat  mich  zuerst  zu  dem  Vorsatze  angeregt,  die  Grundzuge  des  modernen 
Volkerrechts  in  Form  eines  Rechtsbuchs  darzustellen  und  Ihre  Brief e haben 
mich  ermuthigt,  dieses  Wagniss  durchzufiihren.” 

As  might  be  expected  from  the  preface,  Dr.  Lieber’s  Instructions  are 
referred  to  in  the  text  and  printed  in  the  Appendix  of  the  book. 

“ Of  the  importance  and  influence  of  Lieber’s  Instructions,  Professor  Nys 
has  the  following  to  say: 

“ Or,  ces  Instructions  ont  et4  copi4es  par  un  grand  nombre  d’Etats,  leurs 
dispositions  principales  figurent  dans  le  Projet  d’une  declaration  interna- 
tionale  concernant  les  lois  et  coutumes  de  la  guerre,  qui  a 4t4  adopts  dans  la 
Conf4rence  de  Bruxelles  de  juillet— aoflt  1874,  dans  le  Manuel  des  lois  de 
la  guerre  sur  terre  r6dig4  par  I’Institut  de  droit  international  en  1880,  enfin 


526 


THE  HAGUE  PEACE  CONFEKENCES 


1880  the  Institute  of  International  Law  at  its  session  in 
Oxford  prepared  a very  careful  and  a very  conscientious 
codification  of  land  warfare  based  upon  Dr.  Lieber’s  code, 
as  well  as  upon  the  labors  of  the  Conference  at  Brussels. 
The  Oxford  Manual,  which  is  considered  by  many  to  be  the 
most  excellent  codification  of  the  law  of  warfare,  was  the  work 
of  a private  body.  When  published  it  won  instant  approval 
although  it  was  not  adopted  by  the  governments.  Therefore,  in 
1899  when  the  First  Hague  Conference  met  there  were  three  proj- 
ects before  it,  for  its  consideration  and  guidance ; the  first  being 
the  codification  of  Dr.  Lieber  recognized  and  enforced  in  a great 
civil  war,  and  I might  likewise  say,  used  to  a very  considerable 
extent  by  France  and  Germany  in  the  War  of  1870;  the  Brussels 

dans  le  Rhglement  concernant  les  lots  et  coutumes  de  la  guerre  sur  terre 
adopts  a la  Haye  en  1899.  Dans  le  processus  d’ acceptation  et  d'adapta- 
tion,  I’Europe  ne  s’est  pas  pr4ocup6e  du  fait  qu’il  s’agissait,  en  definitive, 
de  regie  d4cr6t6es  pour  une  guerre  qui  dtait  envisag^e  dans  un  grand  nom- 
bre  de  ses  directions  comme  une  guerre  civile;  elle  a surtout  consid4r4, 
I’ceuvre  am^ricaine  comme  ime  oeuvre  empreinte  de  sentiments  d’humanit6 
faisant  la  part  de  la  cruaute  aussi  restreinte  que  possible;  elle  s’est  raUi^e 
^ des  concepting  g^n^reuses;  elle  a meme  ajout6  k ce  que  les  dispositions 
avaient  d’humain 

“ M.  Fr6d6ric  de  Martens,  dont  la  part  de  collaboration  dans  I’oeuvre  de 
la  conference  de  Bruxelles  de  1874,  et  dans  celle  de  la  conference  de  la 
Haye  de  1899  [et  de  1907]  a ete  si  considerable,  faisait,  en  1874,  le  plus 
grand  eioge  du  reglement  americain.  ‘Ainsi,  ecrivait-il,  'c’est  aux  Etats 
Unis  de  I’Amerique  du  Nord  et  au  president  Lincoln,  qu’appartient  I’hon- 
neur  d’avoir  pris  I’initiative  de  definir  avec  precision  les  usages  et  les  lois 
de  la  guerre.  Cette  premiere  tentative  officielle  de  codifier  les  usages  de  la 
guerre  et  de  resumer  dans  un  code  les  regies  obligatoires  pour  les  troupes, 
a notablement  contribue  ^ preter  un  caractere  d’humanit6  ^ la  conduite 
des  Etats  du  Nord  dans  le  cours  de  cette  guerre.  Malheureusement,  mal- 
gre  Futility  pratique  incalculable  des  dispositions  prises  par  Lincoln,  son 
example  n’  a pas  4t6  suivi,  jusqu’  ^ present,  par  aucun  des  gouvernements 
europ4ens.’  L’impulsion  6tant  donnee;  on  sait  le  reste.” — Revue  de  droit 
intemationale  et  de  legislation  compar^e  (1902),  2d  series,  Vol.  IV,  pp. 
685-686. 

For  the  list  of  countries  which  have  followed  Lieber’s  instructions,  and 
for  another  foreign  though  less  favorable  appreciation  of  Lieber,  see  Pro- 
fessor Thomas  Erskine  Holland’s  admirable  little  book  on  The  Laws  of  War 
on  Land  (1908),  pp.  71-73. — “TheCode,”  says  Professor  Holland,  “is  not 
well  arranged,  and  its  rules  are  in  some  respects  more  severe  than  those 
which  would  be  enforced  in  a war  between  two  independent  states.’’ 


LAWS  AND  CUSTOMS  OF  LAND  WARFARE 


527 


Convention  of  1874,  which  was  not  ratified;  and  the  private 
codification  of  the  Institute  of  International  Law.  The  con- 
ference acknowledged  this  heavy  debt  in  the  preamble  to  the 
conventions,  the  exact  text  of  which  is  as  follows : 

Inspired  by  these  views  which  are  enjoined  at  the  present 
day,  as  they  were  twenty-five  years  ago  at  the  time  of  the  Brus- 
sels Conference  in  1874,  by  a wise  and  generous  foresight; 

[The  contracting  powers]  Have,  in  this  spirit,  adopted  a great 
number  of  provisions,  the  object  of  which  is  to  define  and  govern 
the  usages  of  war  on  land. 

In  1907  the  preamble  is  preserved  with  the  necessary  modifi- 
cations : 

Seeing  that,  while  seeking  means  to  preserve  peace  and  pre- 
vent armed  conflicts  between  nations,  it  is  likewise  necessary 
to  bear  in  mind  the  case  where  the  appeal  to  arms  has  been 
brought  about  by  events  which  their  care  was  unable  to  avert; 

Animated  by  the  desire  to  serve,  even  in  this  extreme  case, 
the  interests  of  humanity  and  the  ever  progressive  needs  of 
civilization; 

Thinking  it  important,  with  this  object,  to  revise  the  general 
laws  and  customs  of  war,  either  with  a view  to  defining  them 
with  greater  precision  or  to  confining  them  within  such  limits 
as  would  mitigate  their  severity  as  far  as  possible; 

[The  contracting  parties]  Have  deemedit  necessary  to  complete 
and  explain  in  certain  particulars  the  work  of  the  First  Peace 
Conference,  which,  following  the  Brussels  Conference  of  1874, 
and  inspired  by  the  ideas  dictated  by  a wise  and  generous  fore- 
thought, adopted  provisions  intended  to  define  and  govern  the 
usages  of  war  on  land. 

According  to  the  views  of  the  High  Contracting  Parties,  these 
provisions,  the  wording  of  which  has  been  inspired  by  the  desire 
to  diminish  the  evils  of  war,  as  far  as  military  requirements 
permit,  are  intended  to  serve  as  a general  rule  of  conduct  for  the 
belligerents  in  their  mutual  relations  and  in  their  relations  with 
the  inhabitants. 

It  has  not,  however,  been  found  possible  at  present  to  concert 
regulations  covering  all  the  circumstances  which  arise  in  prac- 
tice; 

On  the  other  hand,  the  High  Contracting  Parties  clearly  do 
not  intend  that  unforeseen  cases  should,  in  the  absence  of  a writ- 
ten undertaking,  be  left  to  the  arbitrary  judgment  of  military 
commanders. 


528 


THE  HAGUE  PEACE  CONFERENCES 


Until  a more  complete  code  of  the  laws  of  war  has  been  issued, 
the  High  Contracting  Parties  deem  it  expedient  to  declare  that, 
in  cases  not  included  in  the  Regulations  adopted  by  them,  the 
inhabitants  and  the  belligerents  remain  under  the  protection 
and  the  rule  of  the  principles  of  the  law  of  nations,  as  they  result 
from  the  usages  established  among  civilized  peoples,  from  the 
laws  of  humanity,  and  the  dictates  of  the  public  conscience. 

They  declare  that  it  is  in  this  sense  especially  that  Articles  I 
and  II  of  the  Regulations  adopted  must  be  understood. 

The  convention,  it  may  be  said,  is  composed  of  two  parts; 
the  first  is  general  in  its  nature;  the  second  consist  of  an 
annex,  which  contains  the  regulations  respecting  the  laws  and 
customs  of  war  on  land.  There  are  two  articles  of  the  conven- 
tion proper  which  deserve  special  attention.  The  first  relates 
to  the  duty  undertaken  by  the  States  to  publish  instructions 
in  conformity  with  the  Regulations  for  the  use  of  the  armed 
land  forces  (Article  1) ; the  second  contains  a provision  that 
a party  violating  the  provisions  of  the  said  regulations  shall, 
if  the  case  demands,  be  liable  to  pay  compensation.  It 
shall  be  responsible  for  all  acts  committed  by  persons  forming 
part  of  its  armed  forces.  (Article  3.) 

Now  these  two  paragraphs,  respectively  one  and  three  of 
the  convention,  mean  that  the  nations  adopting  the  regulations 
undertake  to  prescribe  them  to  their  land  forces  so  that  the 
conduct  of  hostilities  shall  be  in  accordance  with  the  regula- 
tions adopted  at  the  Conference,  and  second  that  a sanction 
or  penalty  is  prescribed  for  their  observance  by  the  solemn 
engagement  of  the  powers  to  make  compensation  in  case  of 
the  violation  of  their  provisions.  This  is  a new  section  not 
to  be  found  in  the  conference  of  1899,  but  which  was  taken  from 
the  Oxford  Manual  of  1880.  These  two  provisions  should  be 
carefully  borne  in  mind,  because  they  prescribe  a positive 
duty  and  impose  a sanction  for  the  violation  of  the  regulations 
adopted. 

The  first  section  of  the  Regulations  deals  with  belliger- 
ents and  of  the  first  section  the  most  important  chapter  is 
that  describing  the  qualifications  of  belligerents.  Who  is 
a belligerent?  It  is  of  course  necessary  to  determine  this. 


LAWS  AND  CUSTOMS  OF  LAND  WARFARE 


529 


because  while  belligerents  are  exposed  to  certain  dangers, 
they  are  nevertheless  afforded  protection  in  proper  cases. 
Classes  not  included  within  this  category  are  in  the  first  place 
not  ordinarily  amenable  to  the  military  code,  and  in  the 
second  place  are  not  treated  with  the  same  leniency  as  bellig- 
erents in  certain  cases.  There  is  here  a conflict  between  the 
larger  and  smaller  States.  The  standing  army,  no  matter 
what  the  large  nation  may  say,  is  meant  for  a warlike  purpose. 
It  may  be  said  that  it  is  for  peace  very  much  in  the  same  way 
that  a watchdog  is  maintained  to  preserve  the  safety  of  the 
household;  but  it  is  well  known  that  in  case  the  safety  is 
endangered  the  watchdog  is  intended  to  come  into  play. 
Therefore,  the  large  standing  army  maintained  in  peace  only 
realizes  the  purpose  of  its  existence  in  active  hostilities.  If 
there  is  a peace  by  virtue  of  it,  it  is  an  armed  peace,  not  a 
natural  peace  which  would  result  in  the  absence  of  the  stand- 
ing army.  A large  country  with  a large  standing  army  wishes 
to  make  warfare  a state  affair,  and  to  limit  it  to  the  armed 
forces  which  are  well  known.  It  wishes  to  restrict  likewise  the 
small  State  to  the  use  of  regularly  organized,  known  forces. 
A reason  given  is,  that  if  warfare  be  conducted  by  large  recog- 
nized forces  the  noncombatants  are  not  exposed  to  danger. 
The  real  reason  is  that  a powerful  invader  does  not  wish  to  be 
troubled  with  the  unorganized  forces  that  may  rise  the  instant 
a country  is  invaded.  The  struggle  between  the  two  views 
was  and  is  extreme.  The  large  country  with  its  huge  standing 
army  would  limit  warfare  to  this  army,  and  would  treat  as  a 
mere  rabble  the  inhabitants  of  an  unoccupied  country  that 
rise  against  an  armed  force.  On  the  contrary,  the  small  State 
insists  that  its  inhabitants  have  not  merely  the  right  but  the 
duty,  to  rise  and  oppose  the  invader,  and  that  being  engaged 
in  warlike  purposes,  they  should  not  be  shot  or  hanged,  but 
treated  with  that  consideration  ordinarily  extended  to  belliger- 
ents according  to  laws  of  war.  It  is  unreasonable  to  suppose 
that  a small  State  will  renounce  a right  to  rise  en  masse  in  the 
presence  of  the  invader,  in  defense  of  its  rights  and  of  inde- 
pendence; but  it  is  reasonable  to  insist  that  the  subjects  or 


530 


THE  HAGUE  PEACE  CONFERENCES 


citizens  rising  en  masse  should  be  organized  as  troops  under 
responsible  commanders.  That,  the  small  countries  are 
willing  to  concede,  but  they  say  that  the  invasion  may  be 
so  sudden,  that  they  have  no  time  to  organize,  and  that  it  is 
out  of  the  question  to  provide  uniforms.  The  result  is  the 
following  compromise: 

The  laws,  the  rights,  and  the  duties  of  war  apply  not  only  to 
the  army  but  also  to  militia  and  volunteer  organizations  com- 
bining the  following  conditions: 

1.  Having  at  their  head  a person  who  is  responsible  for  his 
subordinates. 

2.  Having  a permanent  distinctive  sign  recognizable  at  a 
distance. 

3.  Openly  bearing  arms. 

4.  Conforming  to  the  laws  and  customs  of  war  in  their  opera- 
tions. 

In  countries  where  the  militia  or  volunteer  organizations  con- 
stitute or  form  part  of  the  army,  they  are  comprised  under  the 
denomination  of  “army.” 

The  resulting  compromise  (Article  1 of  the  Regulations)  is 
thus  in  favor  of  the  small  powers,  which  refused  to  accept  the 
convention  in  any  form  unless  their  rights  were  safeguarded 
and  defined.  Large  nations  cannot  insist  that  the  inhabit- 
ants rising  on  the  approach  of  the  invader  be  designated  as 
for  target  practice.  It  would  seem  to  be  sufficient  that  they 
conduct  themselves  in  the  field  according  to  the  laws  of  war. 

In  the  next  article  the  right  of  the  inhabitants  to  rise  is 
granted  in  the  following  explicit  language : 

The  inhabitants  of  an  unoccupied  territory  who,  on  the  ap- 
proach of  an  enemy,  spontaneously  take  up  arms  in  order  to 
repeal  the  invading  troops,  without  having  had  time  to  organize 
in  accordance  with  Article  1,  shall  be  considered  as  a belligerent 
if  they  bear  arms  openly  and  respect  the  laws  and  customs  of 
warfare. 

The  question  is  one  of  great  difficulty  and  it  cannot  be  denied 
that  the  opposing  views  of  the  larger  and  of  the  smaller  States 
are  sound  and  convincing  in  themselves,  if  only  one  side  of  the 
problem  be  considered.  For  example,  if  war  is  carried  on  by 


LAWS  AND  CUSTOMS  OF  LAND  WARFARE 


531 


organized  armies  under  the  control  of  responsible  commanders, 
and  if  noncombatants  are  not  to  be  treated  as  enemies  in 
the  field,  it  follows  that  the  invader  has  a right  to  see  at  a 
glance  who  are  and  who  are  not  combatants,  because  a com- 
mander cannot  be  expected  to  suspend  operations  in  order  to 
inspect  the  population  in  whose  midst  he  finds  himself  and  his 
army.  It  is  true,  on  the  other  hand,  that  the  country  invaded 
cannot  be  deprived  of  the  means  at  its  disposal  to  resist  the  inva^ 
sion  and  check  its  advance  merely  because  these  means  may 
be  disagreeable  and  dangerous  to  the  invader.  He  has  a 
right,  however,  to  know  who  is  his  enemy,  and  if  the  use  of 
force  is  to  be  restricted  as  far  as  possible  to  the  actual  combat- 
ant, the  invader  must  be  able  to  distinguish  the  soldier  from 
the  peaceable  citizen;  otherwise,  there  is  danger  that  the  in- 
vader will,  in  the  interest  of  his  own  safety,  treat  the  invaded 
population  as  hostile.  To  prevent  a relapse  to  barbarism,  the 
invaded  country  should  use  all  the  means  at  its  disposal  to 
designate  that  portion  of  its  people  incorporated  with  its 
regular  armed  forces,  and  if  the  exigencies  of  the  moment  do 
not  permit  the  organization  of  the  masses  into  a cohesive  and 
armed  force,  the  least  that  can  be  done,  and  the  most  that  the 
invader  can  be  asked  to  tolerate  is  that  the  improvised  soldiers 
bear  arms  openly  and  respect  the  laws  and  customs  of  war- 
fare. Otherwise,  the  noncombatant  is  an  enemy  in  disguise 
and  the  peaceful  citizen  by  daylight  is  the  secret  and  deadly 
enemy  by  night.  Warfare,  which  is  becoming  a relation  of 
State  to  State  and  restricted  to  its  armed  forces,  would 
become  again  a brutal  contest  between  man  and  man,  and 
soldier  and  bandit  would  be  convertible  terms. ‘ 

In  the  next  article  of  this  introductory  chapter  a twofold 
division  is  made  into  combatants  and  noncombatants.  In 


* For  the  animated  discussions  in  the  First  Conference  on  this  delicate 
and  difficult  subject,  see  La  Conference  Internationale  de  la  Pabc,  1899, 
Second  Commission,  Second  Sub-Commission,  pp.  90-92;  119-126.  A rd- 
sxime  of  the  discussion  is  given  in  M.  Rolin’s  Report  to  the  Conference, 
Plenary  session  of  the  Conference,  pp.  36-37. 

On  the  whole  subject,  see  Hall’s  International  Law  (5th  ed.),  pp.  515-526. 


532 


THE  HAGUE  PEACE  CONFEKENCES 


case  of  capture  by  the  enemy  both  have  a right  to  be  treated 
as  prisoners  of  war.  This  leads  insensibly  to  the  provisions 
of  Chapter  II,  relating  to  prisoners  of  war.  It  may  be  said 
generally  that  the  Convention  of  1899  and  the  revised  Conven- 
tion of  1907  took  great  pains  with  prisoners  of  war.‘  For 
example,  prisoners  are  in  the  power  of  the  hostile  government 
but  not  in  the  power  of  the  individuals  who  capture  them,  and 
are  thus  assured  of  careful  treatment.  All  their  personal 
belongings  except  arms,  horses,  and  military  papers  remain 
their  property.  It  is  provided  in  a series  of  articles  that 
prisoners  of  war  may  be  interned  in  a town  and  bound  not  to 
go  beyond  fixed  limits;  that  the  captor  may  utilize  the  labor  of 
prisoners  according  to  their  rank,  provided  that  the  task  shall 
not  be  excessive;  that  the  wages  earned  shall  be  utilized  to 
mitigate  their  situation,  and  the  surplus  credited  to  them  upon 
their  discharge,  after  deducting  the  cost  of  maintenance. 

These  provisions  are  highly  humanitarian.  It  is  the  merest 
truism  to  say  that  work  is  much  better  for  soldiers  than  idle- 
ness. It  is  necessary,  however,  to  exclude  from  their  field  of 
operation  any  work  that  may  distinctly  relate  to  the  progress 
of  hostilities;  for  prisoners  cannot  honorably  be  required  to 
serve  directly  or  indirectly  against  their  country,  and  in  the 
next  place,  if  they  work,  as  the  State  has  the  right  to  compel 
them  to,  it  is  provided  that  they  shall  be  paid  for  their  labor, 
that  their  wages  shall  go  to  the  improvement  of  their  position 
and  that  the  balance  paid  them  upon  their  release.  The  regu- 
lations further  declare  that  the  government  into  whose  hands 
prisoners  of  war  have  fallen  is  charged  with  their  maintenance 
and  that,  in  the  absence  of  agreement,  prisoners  and  soldiers  of 
the  army  of  the  captor  shall  be  treated  upon  an  equal  footing. 
Either  it  is  necessary  to  watch  the  prisoner  or  to  free  him  on 
parole,  that  is,  on  his  word  of  honor  that  he  will  not  serve  during 
the  war  or  until  exchanged,  and  for  this  purpose  there  are 
appropriate  directions  in  the  convention.  Escaped  prisoners 

* Convention  of  1899,  Articles  4-20;  Revised  Convention  of  1907,  Articles 
4-20. 


LAWS  AND  CUSTOMS  OF  LAND  WAKFARE 


533 


who  are  retaken  before  rejoining  their  army  may  be  disciplined, 
but  prisoners  who  succeed  in  escaping  and  afterward  fall  into 
the  hands  of  the  original  captors  shall  not  be  punished  there- 
for. Success  is  in  this  case  a justification,  as  often  happens. 

Without  further  insisting  upon  these  interesting  and  proper 
provisions.  Article  13  is  reached,  which  deals  with  a class  of 
persons  associated  with  the  army,  although  they  do  not  take 
part  in  active  hostilities. 

Persons  who  follow  an  army  without  being  directly  connected 
therewith,  such  as  newspaper  correspondents  and  reporters, 
sutlers,  and  furnishers  of  supplies,  who  fall  into  the  hands  of 
the  enemy  and  whom  the  latter  deems  it  necessary  to  hold  shall 
be  entitled  to  treatment  as  prisoners  of  war,  provided  they  pos- 
sess a certificate  of  identity  from  the  military  authority  of  the 
army  which  they  were  accompanying.* 

Articles  14,  15,  and  16  cannot  be  too  highly  commended. 
They  appeared  in  a less  perfect  form  in  the  convention  of 
1899  and  they  are  in  their  present  form  eminently  humani- 
tarian. For  example. 


An  inquiry  office  for  prisoners  of  war  is  instituted  on  the 
commencement  of  hostilities  in  each  of  the  belligerent  States, 
and,  when  necessary,  in  neutral  countries  which  have  received 
belligerents  in  their  territory.  It  is  the  function  of  this  office 
to  reply  to  all  inquiries  about  the  prisoners.  It  receives  from 
the  various  services  concerned  full  information  respecting  in- 


' By  the  law  and  practice  of  civilized  nations,  enemies’  subjects  taken 
in  arms  may  be  made  prisoners  of  war;  but  every  person  found  in  the  train 
of  an  army  is  not  to  be  considered  as  therefore  a belligerent  or  an  enemy. 
In  all  wars,  and  in  all  countries,  multitudes  of  persons  follow  the  march 
of  armies,  for  the  purpose  of  traffic  or  from  motives  of  curiosity,  or  the  influ- 
ence of  other  causes,  who  neither  expect  to  be,  nor  reasonably  can  be,  con- 
sidered belligerents 

There  would  be  no  meaning  in  that  well-settled  principle  of  the  law 
of  nations  which  exempts  men  of  letters  and  other  classes  of  noncombat- 
ants from  the  liability  of  being  made  prisoners  of  war,  if  it  were  an  answer 
to  every  claim  for  such  exemption  to  say  that  the  person  making  it  was 
united  with  a military  force,  or  journeying  imder  its  protection. — Daniel 
Webster,  Secretary  of  State.  Moore’s  Int.  Law  Digest,  Vol.  VII,  pp.  217- 
218. 


534 


THE  HAGUE  PEACE  CONFERENCES 


ternments  and  transfers,  releases  on  parole,  exchanges,  escapes, 
admissions  into  hospitals,  deaths,  as  well  as  other  information 
necessary  to  enable  it  to  make  out  and  keep  up  to  date  an  indi- 
vidual return  for  each  prisoner  of  war.  The  office  must  state 
in  this  return  the  regimental  number,  name  and  surname,  age, 
place  of  origin,  rank,  unit,  wounds,  date  and  place  of  capture, 
internment,  wounding,  and  death,  as  well  as  any  observations 
of  a special  character.  The  individual  return  shall  be  sent  to 
the  Government  of  the  other  belligerent  after  the  conclusion 
of  peace. 

It  is  likewise  the  function  of  the  inquiry  office  to  receive  and 
collect  all  objects  of  personal  use,  valuables,  letters,  etc.,  found 
on  the  field  of  battle  or  left  by  prisoners  who  have  been  released 
on  parole,  or  exchanged,  or  who  have  escaped,  or  died  in  hos- 
pitals or  ambulances,  and  to  forward  them  to  those  concerned. 
(Article  14.) 

Article  15  deals  with  the  relief  societies  for  prisoners  of  war. 

Relief  societies  for  prisoners  of  war,  which  are  properly  con- 
stituted in  accordance  with  the  laws  of  their  country  and  with 
the  object  of  serving  as  the  channel  for  charitable  effort  shall 
receive  from  the  belligerents,  for  themselves  and  their  duly 
accredited  agents  every  facility  for  the  efficient  performance 
of  their  humane  task  within  the  bounds  imposed  by  military 
necessities  and  administrative  regulations.  Agents  of  these 
societies  may  be  admitted  to  the  places  of  internment  for  the 
purpose  of  distributing  relief,  as  also  to  the  halting  places  of 
repatriated  prisoners,  if  furnished  with  a personal  permit  by 
the  military  authorities,  and  on  giving  an  undertaking  in  writ- 
ing to  comply  with  all  measures  of  order  and  police  which  the 
latter  may  issue.  (Article  15.) 

Article  16  provides  that: 

Inquiry  offices  enjoy  the  privilege  of  free  postage.  Letters, 
money  orders,  and  valuables,  as  well  as  parcels  by  post,  intended 
for  prisoners  of  war,  or  dispatched  by  them,  shall  be  exempt 
from  all  postal  duties  in  the  countries  of  origin  and  destination, 
as  well  as  in  the  countries  they  pass  through. 

Presents  and  relief  in  kind  for  prisoners  of  war  shall  be  ad- 
mitted free  of  all  import  or  other  duties,  as  well  as  of  payments 
for  carriage  by  the  State  railways.  (Article  16.) 

Article  20  reads  as  follows: 

After  the  conclusion  of  peace,  the  repatriation  of  prisoners 
of  war  shall  be  carried  out  as  quickly  as  possible. 


LAWS  AND  CUSTOMS  OF  LAND  WAHFARE 


535 


It  needs  no  argument  to  show  that  these  provisions  are 
thoroughly  humanitarian,  and  if  they  do  not,  as  they  cannot, 
remove  hardship  from  the  battlefield,  they  at  least  try  to 
alleviate  the  condition  of  prisoners  and  of  the  sick  and  wounded. 

Article  17  dealing  with  officers,  provides  that  when  prisoners, 
they  shall  receive  the  same  rate  of  pay  to  which  officers  of  the 
same  grade  are  entitled  in  the  country  of  their  detention,  and 
that  the  amount  so  advanced  be  repaid  by  their  government. 
This  is  a wise  provision  because  it  frequently  happens  that 
officers  are  dependent  upon  their  pay.  If  they  do  not  receive 
it  they  are  helpless,  for  it  is  impossible  to  send  according 
to  ordinary  rules,  messages  or  matters  across  the  enemy  line.^ 
Therefore,  the  article  provides  that  they  shall  receive  the 
pay  they  were  accustomed  to,  but  that  it  shall  be  at  the  end 
of  the  war  reimbursed  to  the  captor.* 

Chapter  III  deals  with  the  sick  and  wounded,  providing  that 
the  obligations  of  belligerents  are  covered  by  the  Geneva 
Convention.  (Article  21.)  Section  II  deals  with  active  hostil- 
ities, Chapter  I of  this  section  treats  of  the  means  of  injuring 
the  enemy  of  sieges  and  bombardments. 

Article  22  seems  cruel.  It  is  cruel,  still  it  is  an  advance. 

The  right  of  belligerents  to  adopt  means  of  injuring  the 
enemy  is  not  unlimited.  (Article  22.) 

Article  23  provides  certain  prohibitions  among  which  are  the 
following  : 

In  addition  to  the  prohibitions  provided  by  special  conven- 
tions, it  is  especially  forbidden — 
o.  To  employ  poison  or  poisoned  weapons; 
h.  To  kill  or  wound  treacherously,  individuals  belonging 
to  the  hostile  nation  or  army; 


* For  the  learning  on  the  subject,  see  case  of  Kershaw  v.  Kelsey  (1868), 
100  Mass.  Rep.,  561. 

^ Articles  14-20  were  proposed  in  1899  by  the  distinguished  Belgian 
statesman,  M.  Beemaert,  and  adopted  unanimously  almost  without  objec- 
tion. See  La  Conference  Internationale  de  la  Paix,  1899,  part  III,  Second 
Commission,  Second  Sub-Commission,  pp.  74-75. 


536 


THE  HAGUE  PEACE  CONFERENCES 


c.  To  kill  or  wound  an  enemy,  who,  having  laid  down  his 
arms  or  having  no  longer  means  of  defense,  has  surrendered  at 
discretion; 

d.  To  declare  that  no  quarter  will  be  given; 

e.  To  employ  arms,  projectiles,  or  material  calculated  to 
cause  unnecessary  suffering; 

/.  To  make  improper  use  of  a flag  of  truce,  of  the  national 
flag,  or  of  the  military  insignia  and  uniform  of  the  enemy,  as 
well  as  the  distinctive  badges  of  the  Geneva  Convention; 

g.  To  destroy  or  seize  the  enemy’s  property,  unless  such 
destruction  or  seizure  be  imperatively  demanded  by  the  neces- 
sities of  war; 

h.  To  declare  abolished,  suspended  or  inadmissible  in  a 
court  of  law  the  rights  and  actions  of  the  nationals  of  the  hostile 
party. 

A belligerent  is  likewise  forbidden  to  compel  the  nationals 
of  the  hostile  party  to  take  part  in  the  operations  of  war  directed 
against  their  own  country,  even  if  they  were  in  the  belligerent’s 
service  before  the  commencement  of  the  war. 

Paragraph  h is  an  addition  to  the  Conference  of  1899, 
but  will  probably  commend  itself.' 

War  is  to  be  limited  to  the  citizens  and  subjects  of  the  respec- 
tive states.  Some  of  the  humanitarian  provisions  follow: 

Article  25 

The  attack  or  bombardment,  by  whatever  means,  of  towns, 
villages,  dwellings,  or  buildings  which  are  undefended  is  pro- 
hibited. 

Article  26 

The  officer  in  command  of  an  attacking  force  must,  before 
commencing  a bombardment,  except  in  cases  of  assault,  do  all 
in  his  power  to  warn  the  authorities. 

Article  27 

In  sieges  and  bombardments  all  necessary  steps  must  be  taken 
to  spare,  as  far  as  possible,  buildings  dedicated  to  religion,  art, 
science,  or  charitable  purposes,  historic  monuments,  hospitals, 
and  places  where  the  sick  and  wounded  are  collected,  provided 
they  are  not  being  used  at  the  time  for  military  purposes. 


'But  see  on  this  point  Professor  Holland’s  Law'of  War  on  Land  (1908), 
Sec.  77,  note,  p.  44. 


LAWS  AND  CUSTOMS  OF  LAND  WARFARE  537 

It  is  the  duty  of  the  besieged  to  indicate  the  presence  of  such 
buildings  or  places  by  distinctive  and  visible  signs,  which  shall 
be  notified  to  the  enemy  beforehand. 

Article  28 

The  pillage  of  a town  or  place,  even  when  taken  by  assault, 
is  prohibited. 

These  four  articles  are  designed  to  restrict,  as  far  as  possible, 
the  hardship  of  war  to  actual  combatants  and  to  the  public 
property  of  the  belligerents.  The  purpose  of  war  is  no 
longer  to  produce  submission  by  the  wanton  destruction  of  non- 
combatants  and  private  property;  but  to  crush  resistance  of 
the  enemy  in  arms,  and  to  subject  national  property  to  destruc- 
tion or  to  enemy  use  in  order  to  exhaust  the  means  of  resist- 
ance, whether  it  be  animate  or  inanimate.  The  slightest 
knowledge  of  the  history  and  practice  of  warfare  shows  the 
advance  registered  by  these  articles,  which,  however,  are  a 
mere  codification  of  existing  practice  rather  than  an  inno- 
vation.* 

Spies  are  treated  of  in  Chapter  II,  and  the  term  “spy”  is 
defined  and  limited  to  the  person  who  enters  the  zone  of  opera- 
tions of  a belligerent  stealthily  in  disguise. 

Information  concerning  the  movements  of  the  enemy  is 
indispensable  to  success,  but  the  spy  has  always  been  harshly 
treated,  llie  calling  is  treated  as  dishonorable,  however 
honorable  the  individual  spy  may  be,  and  death  is  the  pun- 
ishment inflicted.  But  however  dishonorable  the  calling,  and 
however  severe  the  punishment,  the  people  of  Great  Britain 
are  not  likely  to  regard  Major  Andr^  as  unworthy  of  respect, 
and  our  own  countrymen  revere  the  memory  of  Nathan  Hale. 
A monument  to  the  one  is  in  Westminster  Abbey,  and  a beauti- 
ful statue  of  the  other  greets  the  foreigner  upon  his  arrival  in 
New  York. 


'For  model  instruction  to  an  invading  army,  see  Robert  E.  Lee’s  Gen- 
eral order  No.  72,  dated  Chambersburg,  Pa.,  June  27,  1863. 


538 


THE  HAGUE  PEACE  CONFERENCES 


It  is  at  times  difficult  to  decide  who  is  and  who  is  not  a spy. 
The  first  paragraph  of  Article  29  defines  the  spy  as  follows; 

A person  can  only  be  considered  a spy  when,  acting  clan- 
destinely or  on  false  pretences,  he  obtains  or  endeavors  to  ob- 
tain information  in  the  zone  of  operations  of  a belligerent,  with 
the  intention  of  communicating  it  to  the  hostile  party. 

The  second  paragraph  is  perhaps  more  successful  in  exclud- 
ing certain  persons  from  the  category  of  spies,  and  the  treat- 
ment to  be  accorded  to  them : 

Thus  soldiers,  not  wearing  a disguise  who  have  penetrated 
into  the  zone  of  operations  of  the  hostile  army,  for  the  purpose 
of  obtaining  information,  are  not  considered  spies.  Similarly, 
the  following  are  not  considered  spies:  Soldiers  and  civilians 
carrying  out  their  mission  openly,  intrusted  with  the  delivery 
of  dispatches  intended  either  for  their  own  army  or  for  the 
enemy’s  army.  To  this  class  belong  likewise  persons  sent  in 
balloons  for  the  purpose  of  carrying  dispatches  and,  generally, 
of  maintaining  communications  between  the  different  parts  of 
an  army  or  a territory. 

Chapter  III  declares  flags  of  truce  to  be  inviolable.  (Article 
32.)  Chapter  IV  codifies  existing  practice  by  stating  that 
capitulations  are  to  be  strictly  enforceable,  and  shall  not  be 
violated.  (Article  35) . Chapter  V deals  with  armistices,  stating 
how  they  may  be  concluded,  and  to  what  extent  they  suspend 
military  operations  by  mutual  agreement.  (Articles  36-41.) 

Then  comes  a section  very  important  indeed,  dealing  with 
military  authority  in  the  territory  of  the  enemy.  It  may  be 
briefly  summarized  as  follows: 

The  enemy  taking  possession,  disposseses  the  legitimate 
sovereign  for  a temporary  purpose.  Therefore,  he  should  be 
limited  to  the  temporary  use  of  the  public  buildings,  and  to  the 
use  of  the  public  land.  His  regulations  should  not  extend 
beyond  the  time  of  his  occupation,  because  the  right  to  legislate, 
depending  upon  occupation,  should  not  extend  beyond  it. 
In  the  same  way,  if  his  right  to  legislate  depends  upon  his 
occupation,  it  should  not  apply  to  matters  beyond  military 
control.  In  a word,  he  should  act  as  a usufructuary  not  as  an 


LAWS  AND  CUSTOMS  OF  LAND  WARFARE 


539 


owner  of  the  ultimate  interest.  He  should  preserve  the  sanc- 
tity of  private  property.  If  necessary  for  military  purposes  it 
may  be  destroyed.  He  should  not  support  his  administration 
at  the  expense  of  the  individual  but  at  the  expense  of  the  State, 
and  if  it  is  necessary  to  exact  sums  of  money  (contributions)  or 
to  take  possession  of  articles  in  kind  (requisitions),  they  should 
be  taken  from  individual  owners,  and  receipts  given  so  that 
the  home  government  may  pay  for  them  at  the  end  of  the  war 

Article  55 

The  occupying  State  shall  be  regarded  only  as  administrator 
and  usufructuary  of  public  buildings,  real  estate,  forests,  and 
agricultural  estates  belonging  to  the  hostile  State,  and  situated 
in  the  occupied  country.  It  must  safeguard  the  capital  of  these 
properties,  and  administer  them  in  accordance  with  the  rules 
of  usufruct. 

Article  56 

The  properties  of  municipalities,  that  of  institutions  dedicated 
to  religion,  charity  and  education,  the  arts  and  sciences,  even 
when  State  property,  shall  be  treated  as  private  property. 

All  seizure  of,  destruction  or  willful  damage  done  to  institu- 
tions of  this  character,  historic  monuments,  works  of  art  and 
science,  is  forbidden,  and  should  be  made  the  subject  of  legal 
proceedings. 

To  summarize  the  convention  and  the  regulations  in  a few 
sentences.  War  is  a relation  between  State  and  State.  It 
should  as  far  as  possible  be  limited  to  actual,  armed  belliger- 
ents, who  should  carry  arms  openly  and  be  recognizable  at  a 
distance,  by  uniform  or  other  sign.  All  needless  suffering 
should  be  avoided,  the  use  of  poisoned  weapons  prohibited, 
as  well  as  the  use  of  instruments  causing  serious  injury,  that 
is,  greater  injury  than  that  necessary  for  the  immediate  pur- 
pose, namely,  to  stop  the  enemy.  Prisoners  should  be 
humanely  treated.  Noncombatants  should  be  uninjured  in 
life  and  property.  The  right  of  the  belligerent  to  occupy 
territory  should  be  measured  by  his  occupation,  and  should  not 
extend  in  time  or  space  beyond  the  actual  field  of  operations. 
Nothing  should  be  done  by  the  invader  to  affect  ultimate  owner- 


540 


THE  HAGUE  PEACE  CONFERENCES 


ship  of  the  buildings  or  property  occupied.  Private  property 
necessary  for  military  operations  may  be  taken;  it  may  be 
destroyed.  If  used  for  military  purposes  it  should  be  paid 
for;  if  in  kind  or  in  money,  a receipt  should  be  given  to  its 
owner,  so  that  the  home  country  may  at  the  conclusion  of  peace 
compensate  its  subject  or  citizen  for  the  loss. 

No  matter  how  carefully  drawn  a convention  may  be  and 
how  clear  and  explicit  its  regulations,  it  is  to  be  feared  that 
either  the  letter  or  the  spirit  will  be  violated.  To  be  service- 
able in  the  campaign,  the  paragraphs  must  be  few  in  number, 
and  comprised  within  the  smallest  compass.  Much  must, 
therefore,  be  left  to  the  discretion  of  the  commander,  and 
in  the  heat  of  action  it  is  too  much  to  expect  that  the  interpre- 
tation of  the  soldier  in  the  field  will  always  be  in  accord  with 
that  placed  upon  it  by  the  scholar  or  student  in  his  study  and 
retirement.  It  is  the  intention  of  the  Conference  that  the 
provisions  of  the  convention  be  supplied  to  the  armed  forces 
of  the  contracting  parties  for  their  instruction  and  guidance, 
and  in  order  that  the  regulations  as  a whole  shall  be  mastered, 
and  that  violations  may  be  as  infrequent  as  possible,  the  con- 
vention specifically  provides  in  Article  3 that  the  bellig- 
erent violating  the  regulations  shall  be  liable  in  damages. 

The  convention  in  its  original  and  revised  form  recom- 
mended the  regulations,  and  by  signing  the  convention  and 
communicating  the  regulations  to  every  army,  the  good  faith 
of  the  contracting  party  is  engaged  and  a moral  obligation 
created  to  observe  them.  The  Convention  of  1907,  marks  a 
great  and  salutary  advance : for  the  moral  obligation  of  1899 
a legal  obligation  is  created  with  a penalty  for  its  nonobser- 
vance or  violation. 1 


* For  the  discussions  of  1899,  concerning  the  Laws  and  Customs  of  Land 
Warfare,  see  Conference  Internationale  de  la  Paix,  1899,  part  III,  pp.  69-128. 

For  the  revision  of  1907,  see  La  Deuxieme  Conference  Internationale  de 
la  Paix,  1907,  vol.  Ill,  pp.  101-149;  8-15. 


NEUTRAL  POWERS  AND  PERSONS  IN  LAND  WARFARE  541 


4.  Convention  Respecting  the  Rights  and  Duties  of 
Neutral  Powers  and  Persons  in  Case  of  War  on 
Land 

This  convention  deals  with  the  rights  and  duties  of  neutral 
powers  and  persons  in  case  of  land  warfare,  and  is  but  the 
fragment  of  a more  extended  and  ambitious  draft  in  the 
nature  of  a codification  of  neutral  rights  and  duties.  The 
purpose  and  the  limitations  of  the  convention,  as  indicated  in 
the  first  paragraph  of  the  preamble,  are  to  lay  down  more 
clearly  the  right  and  duties  of  neutral  powers  in  case  of  war  on 
land,  and  regulate  the  position  of  belligerents  who  have  taken 
refuge  in  neutral  territory.  The  second  paragraph  of  the 
preamble  states  that  the  Conference  is  desirous  of  defining  the 
meaning  of  the  term  neutral,  pending  the  possibility  of  settling 
in  its  entirety  the  position  of  neutral  individuals  in  their  rela- 
tions with  the  belligerents.  It  may  be  admitted  that  the  sub- 
ject itself  is  beset  with  difficulties,  and  that  the  definition  of  neu- 
tral and  belligerent  rights  is  a task  to  tax,  not  merely  a confer- 
ence sitting  for  a few  months,  but  the  home  government  aided 
by  expert  advice  and  the  experience  of  the  past.  The  real 
difficulty,  however,  the  rock  on  which  the  convention  split, 
lay  in  the  fact  that  two  principles  were  in  play,  each  striving 
for  mastery,  namely,  the  principle  of  nationality  and  the  prin- 
ciple of  enemy  domicile.  By  the  principle  of  nationality,  a 
neutral  residing  in  the  territory  of  a belligerent  forms  no  part 
of  the  community,  although  he  may  have  established  himself 
in  business,  and  may  derive  wealth  and  social  station  from 
residence  in  such  a community.  He  is  an  alien,  a stranger  to 
the  supreme  struggle  in  which  the  life  and  death  of  the  State 
may  be  involved.  His  allegiance  is  to  his  home  government 
to  which  he  looks  for  protection  from  the  confusion,  turmoil 
and  hardship  of  war,  and  on  the  principle  nationality  the  home 
government  is  bound  to  protect  its  citizens  or  subjects  although 
in  partibus  infidelium.  It  cannot  be  doubted  that  much  is  to 
be  said  for  this  point  of  view,  because,  while  an  alien  resident 
contributes  to  the  prosperity  of  the  country,  he  desires  to  live 


542 


THE  HAGUE  PEACE  CONFERENCES 


at  peace,  and  if  he  preserves  peace  he  does  not  sacrifice  his 
neutrality.  A strong  neutral  nation,  with  citizens  and  sub- 
jects in  various  parts  of  the  world,  finds  these  to  be  the  advance 
agents  of  commercial  and  industrial  supremacy  and  naturally 
desires  to  protect  them.  A preferred  position  is  thus  created 
for  its  subjects  in  belligerent  parts,  and  in  the  interests  of 
neutrality  much  is  to  be  said  for  this  theory. 

On  the  other  hand,  the  doctrine  of  enemy  domicile  is  not 
without  its  supporters.  An  alien  cannot  well  ask  that  he 
possess  greater  rights  in  the  chosen  country  of  his  residence 
than  enjoyed  by  the  native  born.  He  receives  the  protection 
of  their  law  in  time  of  peace,  he  prospers  in  the  community 
and  acquires  influence.  In  time  of  peace  the  distinction 
between  the  native  born  and  the  alien  is  regarded  as  unfriendly 
discrimination.  The  moment  that  war  breaks  out  the  native 
born  is  subject  to  military  duty,  his  allegiance  to  his  govern- 
ment causes  him  to  sacrifice  his  life,  and  his  property  is  exposed 
to  seizure  and  destruction  if  not  to  unmeasured  confiscation. 
The  belligerent  feels  that  a distinction  between  the  native 
born  and  the  alien  operates  in  favor  of  the  foreigner,  and  in  a 
time  of  commotion  and  danger  he  is  as  unwilling  to  create  a 
favored  class  as  he  is  to  withdraw  alien  residents  and  their 
property  from  the  service  of  the  country  of  their  adoption.  A 
belligerent  State,  therefore,  is  inclined  to  look  with  disfavor  upon 
the  distinction  drawn  between  the  neutral  residing  upon  its 
territory  and  to  subject  his  property  to  its  control.  It  objects 
to  the  creation  of  an  imperium  in  imperio.  It  is  not  to  be 
wondered,  therefore,  that  the  Conference  found  difficulty  in 
the  situation,  and  was  unable  in  the  limited  time  at  its  disposal 
to  reconcile  the  divergence  of  opinion.  The  trouble,  lay,  how- 
ever, with  the  subject,  not  with  the  Conference,  and  until  a 
compromise  between  the  principles  of  nationality  and  enemy 
domicile  is  reached,  it  is  doubtful  if  a comprehensive  and 
satisfactory  convention  concerning  the  rights  and  duties  of 
neutrals  in  belligerent  territory  can  be  devised  and  framed. 
The  general  principles  of  neutrality,  however,  are  capable  of 
ascertainment  and  codification,  and  the  Conference  was  sue- 


NEUTKAL  POWERS  AND  PERSONS  IN  LAND  WARFARE  543 


cessful  in  defining,  elaborating  and  in  bringing  them  to  accep- 
tance. The  difficulty  arose  when  the  jarring  principles  of 
nationality  and  enemy  domicile  thrust  themselves  upon  the 
Conference. 

The  convention  as  finally  adopted  is  divided  into  five  chap- 
ters, respectively  dealing  with  the  rights  and  duties  of  neutral 
Powers  (Chapter  I) ; belligerents  interned  and  wounded  tended 
in  neutral  territory  (Chapter  II);  neutral  persons  (Chapter  III) 
railway  material  (Chapter  IV) ; and  final  provisions  of  a purely 
formal  nature  (Chapter  V). 

The  point  of  view  of  the  first  chapter  is  that  neutrals  are 
no  longer  suffered  and  tolerated,  but  that  they  have  acquired  a 
standing  in  international  law  with  rights  of  their  own.  As 
peace  is  the  normal  status  of  society,  belligerents  no  longer 
possess  exclusive  rights;  they  are  subject  to  clearly  defined 
duties  which  daily  increase.  This  point  of  view  was  forced 
upon  the  Conference  by  Belgium. 

Several  of  the  duties  of  neutral  States  have  for  their  object 
to  forbid  the  toleration  on  their  territory  of  actions  which  the 
belligerents  should  not  be  permitted  to  perform. 

It  is  proper,  therefore,  not  to  limit  oneself  to  the  statement 
that  neutrals  are  held  to  prevent  such  acts.  It  is  essential 
to  declare  that  the  obligations  of  neutrals  in  regard  to  these 
matters  arise  from  a general  inhibition,  which,  logically,  concerns 
chiefly  and  in  first  instance  the  belligerents,  before  producing 
duties  for  the  neutrals.* 

In  other  words,  the  point  of  approach  adopted  by  the  Confer- 
ence was  to  define  the  right  of  the  belligerent,  and  in  imposing 
a limitation  upon  his  action  to  tax  him  with  the  performance 
of  a duty.  The  first  article  is  declaratory  of  international  law, 
namely,  “the  territory  of  neutral  powers  is  inviolable;”  but 
from  the  viewpoint  of  the  Conference  it  seemed  advisable  to 
proclaim  this  natural  and  absolute  right,  which,  when  estab- 
lished, imposes  a duty  on  the  neutral  to  maintain  the  neutral 
character  of  its  territory.  The  succeeding  articles,  2,  3 and  4, 

‘ Report  of  Colonel  Borel,  La  Deuxieme  Conference  Internationale  de  la 
Paix,  1907,  Actes  et  Documents,  Vol.  I,  137-138. 


544 


THE  HAGUE  PEACE  CONFERENCES 


impose  a duty  upon  belligerents  by  forbidding  them  to  make 
use  of  neutral  territory,  either  for  moving  troops  or  convoys 
of  munitions  of  war  or  supplies  across  neutral  territory;  or 
from  using  neutral  territory  as  a basis  of  hostile  action  by 
erecting  on  neutral  territory  wireless  telegraphy  stations  or  other 
apparatus  for  the  purpose  of  communication  with  belligerent 
forces  on  land  or  sea;  or  to  use  any  installation  of  this  kind 
established  by  them  before  the  war  on  neutral  territory  for 
purely  military  purposes,  which  installation  has  not  been 
opened  for  public  messages ; or  to  recruit  troops,  or  to  estab- 
lish recruiting  agencies  upon  neutral  territory.  The  purpose 
of  these  articles  is  well-nigh  self-evident.  Neutrality  is  a 
recognized  status  which  the  belligerent  is  forced  to  recognize. 
It  is  true  that  the  neutral  should  not  permit  such  use  of  its 
territory,  and  Article  5 imposes  this  duty  upon  the  neutral. 
In  the  language  of  the  older  law,  a duty  would  be  imposed  upon 
the  neutral  to  prevent  any  of  these  actions.  The  recognition 
of  neutrality  as  a right  shifts  the  burden  to  the  belligerent  who 
is  specifically  forbidden  to  do  any  one  of  the  prohibited  acts. 
A duty  is,  however,  imposed  upon  the  neutral  to  prohibit  the 
commission  of  these  acts,  but  the  duty  imposed  is  coextensive 
with  the  power  to  prevent.  Thus,  the  neutral  is  not  called 
upon  to  punish  acts  in  violation  of  its  neutrality  unless  the 
said  acts  have  been  committed  on  its  own  territory.  The  duty 
is  therefore  limited  to  the  act  committed  on  neutral  territory 
subject  to  the  control  of  the  neutral.  The  citizen  or  subject  of 
the  neutral  in  foreign  parts,  who  may  have  violated  the  previ- 
ous provisions,  is  beyond  the  control  of  the  neutral,  and  there- 
fore the  neutral  is  not  held  responsible  for  acts  which  he  could 
neither  control  nor  prevent.  In  this  respect  the  duty  is 
limited ; but  from  another  point  of  view  the  duty  is  enlarged, 
because  the  convention  looks  to  neutral  territory  and  regards 
domicile,  not  nationality,  as  the  controlling  principle.  The 
neutral  is  bound  to  prevent  the  commission  of  these  acts  by  its 
own  citizens  and  subjects  or  aliens  within  its  territory.^  It  is 
interesting  to  notice  in  this  connection  that  the  principle  of 
domicile  is  adopted  to  the  exclusion  of  nationahty. 


NEUTKAL  POWERS  AND  PERSONS  IN  LAND  WARFARE  545 


Articles  6,  7 and  8 form,  as  it  were,  a second  group,  recog- 
nizing the  fact  that  the  neutral  is  not  taxed  with  responsibility 
by  the  mere  fact  of  belligerency  because  neutral  subjects  or 
citizens  are  engaged  in  certain  transactions  permissible  in  peace, 
but  questionable  in  war.  The  right  of  the  neutral  is  admitted 
but  stated  negatively  rather  than  positively.  For  example, 
the  responsibility  of  a neutral  is  not  involved  by  the  fact 
that  persons  cross  the  frontier  individually  to  offer  their 
services  to  a belligerent  (Article  6).  Nor  is  a neutral  called 
upon  to  prevent  on  behalf  of  one  or  the  other  of  the  belligerents, 
the  export  or  transport  of  arms,  munitions,  or  in  general  of 
anything  which  can  be  of  use  to  an  army  or  a fleet  (Article  7) . 
Nor,  finally,  is  the  neutral  required  to  forbid  or  restrict  bel- 
ligerent use  of  telegraph,  or  telephone  cables,  or  of  wireless 
telegraphy  belonging  to  it,  or  to  companies  or  private  indi- 
viduals (Article  8).  The  belligerent  is  forbidden  to  make 
neutral  territory  the  basis  of  hostilities,  for  troops  may  not  be 
enlisted  nor  recruiting  stations  established  in  neutral  territory, 
and  the  neutral  is  obliged  to  prevent  such  unneutral  use  of  its 
territory.  But  the  use  of  neutral  territory  as  a basis  is  objec- 
tionable and  the  neutral  should  and  is  therefore  bound  to  pre- 
vent it;  but  the  passage  of  its  frontier  by  unorganized,  isolated 
groups,  even  although  their  intention  be  to  join  one  or  other 
of  the  belligerents,  is  not  the  use  of  neutral  territory  as  a 
basis  of  operations.  If  such  acts  be  committed  on  a large 
scale,  the  neutral  is  taxed  with  knowledge  and  therefore  with 
responsibility;  but,  without  an  elaborate  secret  service  and 
without  watchfulness  incommensurate  with  results,  the  neutral 
cannot  examine  the  individual  leaving  its  borders  in  order  to 
ascertain  his  ultimate  purpose.  Therefore,  the  neutral  nation 
should  not  be  taxed  with  responsibility,  and  by  the  convention 
it  is  not. 

In  the  next  place,  the  right  of  the  neutral  to  engage  in  peace- 
ful pursuits  is  expressly  acknowledged,  and  its  citizens  or  sub- 
jects are  not  to  be  forbidden  to  export  or  transport  arms, 
munitions  of  war  or  articles  of  commerce,  even  although 


546 


THE  HAGUE  PEACE  CONFEKENCES 


destined  for  either  one  of  the  belligerents.  If  limited  to  a 
particular  belligerent,  the  act  would  be  partisan  and  therefore 
forbidden,  but  general  trade  and  commerce  are  permitted. 
This  is  a conventional  recognition  of  the  fact  that  trade  in 
contraband  is  neither  forbidden  nor  unneutral,  although  imder 
certain  circumstances  the  property  may  doubtless  be  seized 
and  confiscated  before  it  reach  the  belligerent.  The  neutral 
shipper  undertakes  the  risk  and  assumes  the  responsibility. 
Such  has  been  and  is  the  law  of  England  and  the  United 
States.^  And,  finally,  the  older  conception  of  neutrality, 
namely,  impartiality,  is  recognized  in  that  the  belligerent  use 
of  means  of  communication  is  not  forbidden,  provided  no  dis- 
crimination is  shown  for  or  against  either  belligerent.  (Article 
9.)  It  should  be  noted,  that  the  neutral  may  permit  these  acts 
and  that  such  action  on  its  part  is  not  unneutral ; it  may,  how- 
ever, forbid  them : the  matter  is  vested  in  the  sound  discretion 
of  the  neutral,  provided  only  that  impartiality  be  observed. 

The  neutral  is  bound  to  prevent  the  commission  of  unneutral 
acts  within  its  territory,  and,  should  it  resort  to  force,  the  con- 
clusion is  as  obvious  as  it  is  just  that  the  means  taken  to  pre- 
vent the  violation  of  its  neutrality  cannot  be  regarded  as  a 
hostile  act;  for  the  purpose  of  the  act  is  not  to  aid  one  belliger- 
ent by  inflicting  injury  upon  the  other,  but  to  preserve  neu- 
trality. (Article  10.) 

The  five  articles  composing  Chapter  III  deal  with  belliger- 
ents interned  and  wounded  tended  in  neutral  territory.  They 
define  the  duty  of  the  neutral  to  prisoners  who  seek  refuge  with- 
in its  territory,  and  prescribe  the  treatment  to  be  accorded  to 
them.  The  purpose  of  the  chapter,  therefore,  is  to  protect  the 
neutral  from  abuse  of  hospitality,  and,  at  the  same  time,  to 
secure  protection  to  the  prisoner,  or  to  sick  and  wounded  within 
its  jurisdiction.  The  provisions  of  the  Section  are  therefore 
largely  of  a humanitarian  nature.  With  the  exception  of  Arti- 

^The  Helen  Law  Reports,  1 Adm.  & Ecc.  1;  Seton  v.  Low,  1 John- 
ston’s Ca.ses  1 (1799);  Northern  Pacific  Rwy.  Co.,  v.  Northern  American 
Trading  Co.,  195  U.  S.  439  (1903),  21  Op.  Atty.  Gen.  267;  Ex  parte 
Chavasse,  34  Law  Journal,  N.  S.  Bankruptcy  17  (1865). 


NEUTRAL  POWERS  AND  PERSONS  IN  LAND  WARFARE  547 


cle  13,  which  is  new,  the  articles  have  been  transferred  from 
the  Convention  of  1899,  “Respecting  the  laws  and  customs  of 
war  on  land”  (Articles  57-60),  as  it  seemed  to  the  drafting  com- 
mittee that  they  naturally  belonged  to  a convention  regu- 
lating the  rights  and  duties  of  neutrals,  rather  than  to  a con- 
vention dealing  with  the  laws  and  customs  of  land  warfare,  in 
which  belligerents  were  the  chief  parties  and  neutrals  but  inci- 
dents. It  should  also  be  said  that  these  articles  were  devised 
not  merely  in  the  interest  of  the  prisoners,  but  in  the  interest  of 
the  small  States  adjoining  powerful  belligerents,  such  as  Bel- 
gium, Luxemburg,  and  Switzerland ; for  in  recent  wars  large 
bodies  of  fugitives  have  sought  refuge  in  neutral  States,  and  in 
the  Franco-Prussian  War  a French  army  under  Bourbaki 
crossed  the  Swiss  frontier  in  order  to  escape  pursuit  and  capture. 

In  the  first  place,  a neutral  power  which  receives  on  its 
territory  troops  belonging  to  the  belligerent  armies  shall  intern 
them  as  far  as  possible  at  a distance  from  the  theater  of  war ; 
it  may  place  them  in  camps  and  confine  them  in  fortresses  or 
in  places  set  apart  for  this  purpose ; and,  finally,  it  shall  decide 
whether  ofiicers  should  be  left  at  liberty  on  parole  not  to  leave 
the  neutral  territory  without  permission.  (Article  11.)  ‘ It  will 
be  noted  that  no  duty  is  imposed  upon  the  neutral  to  extend 
hospitality  to  belligerent  fugitives:  it  is  permitted  to  receive 
them  without  subjecting  itself  to  criticism.  If,  however,  it 
does  receive  them,  it  shall  exercise  such  control  and  super- 
vision as  to  prevent  them  from  rejoining  their  commands.  For 
this  purpose,  it  seems  advisable  to  remove  them  as  far  as 
possible  from  the  theater  of  war,  and  to  confine  them  in  camps 
I or  even  fortresses,  in  order  to  prevent  the  possibility  of  their 
^ further  participation  in  the  war.  The  demands  of  hospitality, 
however,  may  make  serious  inroads  upon  the  neutral;  for 
'I  fugitives  are  ordinarily  without  the  means  of  support  and  in 
■ the  interest  of  humanity  they  should  be  supplied  with  food, 

; clothing  and  relief.  This  may  involve  a serious  outlay,  and  it 
may  be  that  the  neutral  in  anticipation  of  such  eventuality 

* Article  57  of  the  Convention  of  1899. 


548 


THE  HAGUE  PEACE  CONFERENCES 


may  have  concluded  a special  convention  regulating  its  duties 
in  the  premises.  In  any  case,  the  outlay  should  be  recom- 
pensed because  the  neutral  is  not  a party  to  the  war;  it  did 
not  invite  the  fugitives  and  should  not  bear  the  expense 
incurred  by  its  act  of  hospitality.  Therefore,  at  the  con- 
clusion of  peace  the  expenses  caused  by  the  internment  are  to 
be  reimbursed  by  the  government  of  the  fugitives.  (Article 
12.)  What  treatment  shall  the  neutral  accord  to  escaped 
prisoners  of  war?  It  may  receive  them,  it  cannot  well  refuse 
them  admission,  but  it  clearly  should  recognize  the  status 
acquired  by  the  escape.  The  prisoner  was  subject  to  capture, 
but  within  neutral  territory  he  is  neither  a combatant  nor 
prisoner.  Therefore,  the  convention  provides  that  the  neutral 
shall  act  as  the  agent  of  neither  belligerent.  Escaped  pris- 
oners shall  be  left  in  possession  of  that  which  they  have 
acquired  by  flight,  namely,  their  liberty.  If,  however,  the 
neutral  allows  them  to  remain  in  its  territory,  it  may  assign 
them  a place  of  residence  lest  their  presence  be  a danger  or  a 
menace.  It  may  happen  that  troops  crossing  the  neutral 
territory  may  have  in  their  control  prisoners  of  war.  It 
would  seem  in  this  case  that  the  prisoners  of  the  fugitives 
should  be  set  at  liberty ; for  the  fugitive  by  submitting  to  neu- 
tral jurisdiction  has  renounced  his  belligerent  rights  as  captor, 
and  he  cannot  insist  that  the  neutral  act  as  jailor.  Such  is  the 
convention.  (Article  13.) 

The  interests  of  humanity  seem  likewise  to  require  that  the 
sick  and  wounded  of  the  belligerent  armies  may  enter  neutral 
territory.  But,  lest  the  neutral  territory  be  turned  into  an 
army  hospital,  it  seems  not  only  reasonable  but  essential 
that  such  a duty  should  not  be  imposed  upon  the  neutral. 
The  neutral  should  not  be  required  to  receive  the  sick  and 
wounded;  it  may  in  its  discretion  do  so.  But  it  would  seem 
reasonable  that  the  neutral  be  permitted  to  impose  the  con- 
dition that  the  trains  bringing  them  shall  carry  neither  person- 
nel nor  war  material.  The  train  is  assimilated  to  an  ambu- 
lance and  the  neutral  territory  is,  as  previously  said,  a hospital, 
where  personnel  or  war  material  is  clearly  out  of  place.  If, 


NEUTRAL  POWERS  AND  PERSONS  IN  LAND  WARFARE  549 


however,  the  neutral  permits  the  entry  of  the  sick  and  wounded, 
it  binds  itself  to  take  whatever  measures  of  safety  and  control 
are  necessary  for  the  purpose.  The  neutral  is  not  the  agent  of 
either  belligerent : if  it  decides  to  open  its  territory  to  sick  and 
wounded  it  must  do  so  impartially;  for  it  could  not  care  for 
the  sick  and  wounded  of  one  belligerent  to  the  exclusion  of  the 
other  without  discriminating,  and  discrimination  is  unneutral. 
The  neutral  is  actuated  by  humanitarian  motives.  It  seeks 
to  restore  the  sick  and  wounded  to  health,  because  they  are  men 
in  distress  not  because  they  are  soldiers,  and,  in  restoring  them 
to  health,  it  does  not  undertake  to  furnish  the  belligerents  with 
a fresh  supply  of  soldiers.  Therefore,  they  must  be  guarded 
by  the  neutral  power  so  as  to  prevent  their  taking  further  part 
in  the  war.  (Article  14.)  As  a further  indication  of  the 
humanitarian  nature  of  this  entire  section,  Article  15  provides 
that  the  Geneva  Convention  applies  to  sick  and  wounded 
interned  in  neutral  territory. 

Chapter  III  consists  of  but  three  articles  saved  from  the 
wreck  of  a German  proposition,  dealing  with  the  rights  of 
neutral  persons,  a preface,  an  introduction,  a head  without  a 
body,  to  use  t he  expression  of  Baron  Marschall  von  Bieberstein 
regarding  the  inadequate  result  of  weeks  of  deliberation.  The 
chief  characteristic  of  the  German  proposition  was  the  sub- 
stitution of  the  principle  of  nationality  for  enemy  domicile, 
creating  in  belligerent  countries,  as  has  been  previously  said, 
an  imperium  in  imperio.  The  two  principles  are  not  only 
opposed  but  seemingly  irreconcilable,  and  the  triumph  of  the 
one  necessarily  involves  the  defeat  of  the  other.  Prolonged 
deliberation  in  the  commmission,  and  indeed  in  the  plenary 
session  of  the  Conference  showed,  to  use  a favorite  expression 
of  Baron  Marschall  von  Bieberstein,  that  the  question  was 
not  ripe  for  solution,  and  that  the  Conference  was  unwilling 
definitively  to  accept  either  principle  to  the  exclusion  of  the 
other.  In  such  circumstances  a compromise  was  impossible. 
The  utmost  that  the  Conference  could  do  was  to  adopt 
the  introductory  articles  and  those  portions  of  the  subject 
which  permitted  of  compromise,  to  call  the  attention  of 


550 


THE  HAGUE  PEACE  CONFERENCES 


the  powers  to  the  importance  of  the  commercial  and  indus- 
trial relations  between  belligerent  and  neutrals,  and  to  recom- 
mend that  the  Powers  regulate  these  relations  by  special 
agreement  or  treaty.^ 

The  spirit  of  the  German  project  was  thus  stated  by  General 
Davis  of  the  American  delegation: 

This  delegation  considers  the  proposition  submitted  by  the 
French  delegation  (Articles  1-10  of  the  present  convention)  as 
very  meritorious,  in  that  it  determines  the  neutral  duty  of  a 
state  touching  its  relation  with  belligerent  powers  in  time  of 
war.  The  position  thus  described  has  been  followed  by  the 
United  States  of  America  more  than  a century,  but  the  articles 
by  the  German  delegation  are  more  advanced  and  establish  a 
status  for  neutral  inhabitants  in  belligerent  territory.  The 
status  thus  established  appears  to  me  to  conform  to  the  condi- 
tions of  modern  commerce.  For  commerce  no  longer  is  limited 
to  a single  State  but  reaches  out  to  many.  It  does  not  seem 
necessary  to  explain  to  the  commission  the  extent  and  impor- 
tance of  these  relations,  nor  the  importance  of  preventing  their 
useless  interruption  in  time  of  war. 

The  rules  submitted  by  the  German  delegation  cover  this 
point.  Nay,  more,  they  define  the  rights,  the  duties,  the  im- 
munities of  a neutral  inhabitant  of  a belligerent  State  in  time 
of  war.  They  exempt  him  from  the  burdens  of  a distinctly 
military  character,  and  they  release  his  property  from  military 
contributions.  If  there  be  a military  necessity  to  confiscate  or 
to  use  his  property  he  should  receive  specific  and  generous  com- 
pensation. 

In  all  other  respects  his  situation  is  not  changed.  His 
property  is  taxed  for  the  support  of  the  civil  administration  and 
if  the  military  administration  of  civil  affairs  is  more  costly  than 
the  ordinary  administration  he  ought  to  pay  his  proportional 
part  of  the  excess.  The  proposed  rules  grant  him  only  exemp- 
tion from  specific  military  contributions. 

The  delegation  of  the  United  States  considers  that  this  is  a 
distinct  progress  for  humanity  and  for  the  exact  definition  of 
the  rules  and  obligations  of  neutrals,  and  for  these  reasons  it 
is  happy  to  support  the  proposition  of  the  German  delegation.2 

' See  Final  Act,  voeux  2 and  3,  Vol.  II,  p.  289. 

*La  Deuxieme  Conference  Internationale  de  la  Paix,  1907,  Vol.  Ill,  pp. 
193-194. 

The  articles  referred  to  by  General  Davis  were  presented  by  the  German 
delegation  as  additions  to  the  convention  dealing  with  the  Laws  and  Cus- 
toms of  War  on  Land  and  were  therefore  numbered  61  to  72. 

See  Appendix,  pp.  821-823,  for  the  German  proposition,  divided  into 
three  chapters,  and  intended  by  its  numbering  to  continue  the  old  con- 
vention concerning  war  on  land. 


NEUTRAL  POWERS  AND  PERSONS  IN  LAND  WARFARE  551 


Let  US  now  consider  the  articles  actually  voted.  The  first 
article  of  this  section  (Article  16)  defines  neutrals,  and  properly, 
because  without  an  authoritative  definition  of  a neutral  it  is 
clearly  impossible  to  fix  neutral  rights  and  duties.  A neutral, 
in  the  language  of  the  convention,  is  the  national  of  a State,  not 
taking  part  in  the  war,  and  he  cannot  avail  himself  of  his  neu- 
trality if  he  commits  hostile  acts  against  the  belligerent,  or  if  he 
commits  acts  in  favor  of  a belligerent,  particularly  if  he  takes 
service  in  the  armed  force  of  one  or  other  of  the  parties.  In 
such  case  he  renounces  neutrality.  The  convention,  however, 
provides  that  he  shall  not  be  more  severely  treated  by  the 
belligerent  against  whom  he  has  renounced  his  neutrality 
than  a national  of  the  other  belligerent  State  for  the  same  act, 
a self-evident  proposition. 

It  may  be,  however,  that  the  neutral  residing  in  belligerent 
territory  furnishes  supplies  or  advances  loans  to  the  other 
belligerent.  In  such  a case  it  is  important  to  determine 
whether  the  principle  of  nationality  be  accepted,  for,  if  so,  the 
neutral  has  by  voluntary  act  sacrificed  his  right  to  neutral 
character  and  therefore  protection.  If  the  principle  of  enemy 
domicile  be  accepted  there  can  be  no  doubt  about  the  nature  of 
the  act.  It  is  trading  with  the  enemy  and  illegal,  whether 
undertaken  by  native  or  alien.  This  conclusion  is  reached  by 
Article  18  which  states  that  supplies  furnished  or  loans  made 
to  one  of  the  belligerents  shall  not  be  considered  as  unneutral 
acts  provided  the  neutral  lives  neither  in  the  territory  of  the 
other  belligerent  nor  in  territory  occupied  by  him  and  pro- 
vided further  that  the  supplies  do  not  come  from  these  terri- 
tories. An  exception  is  very  properly  made  in  favor  of  ser- 
vices rendered  in  matters  of  police  or  civil  administration; 
for  in  times  of  commotion  and  disorder  a neutral  may  perform 
genuine  service  in  police  or  civil  administration  of  his  domicile. 
And  it  is  difficult  to  see  how  such  service  can  be  considered  un- 
neutral inasmuch  as  it  has  nothing  to  do  with  war  or  its  conduct. 

These  articles  were  followed  in  the  original  German  proposi- 
tion by  a series  providing  that  belligerents  should  not  require 
services  from  neutrals  directly  concerning  war  although  an 


552 


THE  HAGUE  PEACE  CONFERENCES 


exception  was  made  of  sanitary  and  police  duty  demanded  by 
military  necessity;  but  such  services  as  far  as  possible  should 
be  paid  for  in  ready  money  and  if  not  so  paid  for  a receipt 
should  be  given  for  payment  as  soon  as  possible  (Article 
66) ; that  neutral  nations  should  forbid  their  nationals  to  serve 
in  the  ranks  of  either  belligerent  (Article  65) ; that  no  contribu- 
tions of  war  be  levied  upon  neutrals  excepting  therefrom  exac- 
tions necessary  for  the  administration  of  occupied  territory 
(Article  67) ; that  neutral  property  should  neither  be  seized, 
injured  nor  destroyed  unless  required  by  the  necessities  of  war, 
in  which  case  compensation  should  be  made  upon  the  principle 
of  reciprocity  (Article  68) ; that  the  use  of  real  property  belong- 
ing to  neutrals  should  be  paid  for  if  the  neutral  State  likewise 
recognizes  the  duty  of  payment  (Article  69) ; and  finally  that 
movable  property  belonging  to  a neutral  should  neither  be 
confiscated  nor  used  except  upon  payment  (Article  70). 

Article  65,  imposing  a duty  upon  a neutral  to  prevent  a citizen 
from  taking  service  with  one  or  other  of  the  belligerents,  was 
objected  to  on  the  ground  that  the  duty  of  the  neutral  was 
passive  not  active,  and  that  it  would  be  difficult  to  prevent  neu- 
trals residing  in  the  territory  of  either  belligerent  from  taking 
service. 1 In  consideration  of  these  objections  the  German 
delegation  withdrew  the  proposition. 

Article  64  provided  that  belligerents  could  not  solicit  or 
accept  from  neutrals  services  relating  directly  to  war.  It 
was  insisted  by  the  Netherland  delegation  that  the  provisions 
of  Article  64  should  not  apply  to  a neutral  who  prior  to  the 
outbreak  of  war  had  enlisted  voluntarily  in  the  army  of  one 


‘Since  1818,  this  has  been  the  law  of  the  United  States:  “Every per- 
son who,  within  the  territory  or  jurisdiction  of  the  United  States,  enhsts  or 
enters  himself,  or  hires  or  retains  another  person  to  enlist  or  enter  himself, 
or  to  go  beyond  the  limits  or  jurisdietion  of  the  United  States  with  intent 
to  be  enlisted  or  entered  in  the  service  of  any  foreign  prince,  state,  colony, 
district,  or  people,  as  a soldier,  or  as  a marine  or  seaman,  on  board  of  any 
vessel  of  war,  letter  of  marque,  or  privateer,  shall  be  deemed  guilty  of  high 
misdemeanor,  and  shall  be  fined  not  more  than  one  thousand  dollars,  and 
imprisoned  not  more  than  three  years. — Revised  Statutes  of  the  United 
States,  Sec.  5282. 


NEUTRAL  POWERS  AND  PERSONS  IN  LAND  WARFARE  553 


of  the  belligerents,  which  interpretation  met  with  approval 
and  was  adopted  as  the  first  clause  of  the  new  Article  65  to 
take  the  place  of  the  one  withdrawn  by  Germany,  It  was 
next  stated  that  the  prohibition  of  Article  64  did  not  apply  to 
persons  belonging  to  the  army  of  a belligerent  State  by  virtue 
of  its  legislation,  for  it  appears  that  the  laws  of  several  States 
require  military  service  either  generally  or  specifically  from 
strangers  domiciled  in  their  territory  in  cases  in  which  the 
alien  has  not  performed  military  service  in  the  home  country. 
This  clause  was  adopted  as  the  second  paragraph  of  the  new 
Article  65,  although  it  is  self-evident  that  the  latter  clause 
of  Article  65  is  irreconcilable  with  the  provisions  of  Article 
64;  for  Article  64  prevents  belligerents  from  requiring  military 
service  from  neutrals,  whereas  the  second  clause  of  the  Article 
65  recognizes  the  right  of  the  belligerent  by  local  legislation 
to  force  military  service  upon  neutrals.  The  inconsistency 
was  recognized  and  both  articles  were  stricken  from  the 
projected  convention. 

The  various  Articles  66-69  of  the  German  proposition,  con- 
cerning neutral  property,  of  which  a summary  has  been  given, 
were  voted  by  6 to  5 and  1 abstention  in  the  Committee 
of  Examination,  but  in  the  commission  they  were  suppressed  by 
a vote  of  18  to  11  and  10  abstentions,  10  States  not  responding 
to  the  roll-call.‘ 

Articles  70  to  72  of  the  original  German  proposition  pro- 
vided briefly  that  the  belligerents  were  authorized  to  appro- 
priate and  use,  upon  immediate  payment,  all  the  movable 
property  of  neutrals  within  their  territory  (Article  70) ; that 
neutral  vessels  and  their  cargoes  might  be  appropriated  or 
employed  by  a belligerent  only  if  the  vessels  in  question 
ply  on  rivers  within  its  own  or  enemy  territory,  and  that 
in  case  of  appropriation  the  compensation  due  to  the  neutral 
shall  be  the  value  of  the  vessel,  cargo  and  10  per  cent  profit,  and 
in  case  of  use,  10  per  cent  increase  of  the  ordinary  freight  (Arti- 


' Report  of  Colonel  Borel,  La  Deuxi^me  Conference  Internationale  de  la 
Paix,  1907,  Actes  et  Documents,  Vol.  I,  pp.  153-156. 


554 


THE  HAGUE  PEACE  CONFERENCES 


cle  71);  and  that  the  compensation  for  destruction  or  injury 
of  movable  property  belonging  to  neutrals  should  be  regulated 
in  accordance  with  principles  set  forth  in  Articles  70  and  71 
(Article  72). 

As  a result  of  a profound  and  animated  discussion  in  the 
Committee  of  Examination  and  in  the  commission  itself,  these 
three  articles  were  adopted  in  an  amended  form  with  the  addi- 
tion of  the  provisions  concerning  railway  property,  due  to  the 
initiative  of  M.  Eyschen  of  Luxemburg,  and  submitted  to 
the  Conference  as  Articles  66,  67,  68.  If  we  add  to  these  the 
three.  Articles  64  and  65  the  chapter  entitled  “services  ren- 
dered by  neutrals”  consists  of  five  articles,  a very  small  part  of 
a very  large  field;  but  small  as  the  project  was,  it  was  still  fur- 
ther to  be  reduced,  for  in  the  fifth  plenary  session  of  the  Con- 
ference on  September  7, 1907,  the  objections  to  these  articles 
were  so  many  and  so  varied  that  upon  motion  the  entire  chapter 
was  referred  again  to  the  Second  Commission  for  further  con- 
sideration and  report.  Renewed  discussion  resulted  in  the 
definitive  acceptance  of  the  article  concerning  railway  property 
and  two  voeux,  the  balance  of  the  chapter  being  rejected.^  The 
article  concerning  railway  property,  meant  originally  as  an 
addition  to  the  laws  and  customs  of  war,  was  placed  by  the 
small  drafting  committee  in  the  present  convention  as  its  last 
important  article.  (Article  19.) 

This  article  like  the  provisions  of  Chapter  II  of  the  present 
convention  is  special  in  its  nature,  for  it  owes  its  existence  to 
the  fact  that  small  States,  such  as  Belgium,  and  Switzerland, 
but  more  particularly  Luxemburg,  are  surrounded  by  large, 
powerful  and  bellicose  neighbors.  Railway  material  of  the 
neutral  may  be  found  in  a neighboring  State  upon  the  outbreak 
of  war,  and  in  like  manner  the  railway  property  of  the  bellig- 
erent may  be  within  the  neutral  State.  It  is  hardly  necessary 
to  remark  that  property  of  a neutral  should  not  be  retained  and 
used  by  the  belligerent,  just  as  the  property  of  a belligerent 
should  not  be  retained  by  the  neutral,  yet  it  is  embarrassing  to 


'See  Vol.  II,  p.  289. 


NEUTRAL  POWERS  AND  PERSONS  IN  LAND  WARFARE  555 


forbid  either  party  from  continuing  to  use  the  property  merely 
because  war  has  broken  out.  Had  peace  continued  the  use 
would  be  legitimate.  The  existence  of  war  makes  the  property 
more  useful  to  the  belligerent.  The  same  may  be  said  in  a 
lesser  degree  of  the  neutral.  Therefore,  the  convention  lays 
down  the  general  rule  that  such  property  so  situated  shall  not 
be  requisitioned  or  utilized  by  a belligerent  except  when  and  to 
the  extent  absolutely  necessary,  and  that,  in  case  of  such  use,  it 
shall  be  returned  as  soon  as  possible  to  the  country  of  origin. 
On  the  other  hand,  it  would  be  unfair  to  deprive  the  neutral  of 
the  right  to  retain  and  utilize  at  least  an  equal  amount  of  rail- 
way material,  property  of  the  belligerent.  Such  is  the  stipu- 
lation of  the  convention.  But  as  each  power  is  using  propert}^ 
which  does  not  belong  to  it,  it  follows  that  compensation  shall 
be  paid  by  one  party  or  the  other  in  proportion  to  the  material 
used  and  to  the  period  of  usage.  Important  as  this  provision 
is  to  countries  situated  like  Belgium,  Switzerland  and  Luxem- 
burg, it  is  not  likely  to  be  of  any  service  to  a country  like  the 
United  States.  It  may  unfortunately  be  of  service  in  Europe.' 

' For  the  profound  and  animated  discussion  in  commission  concerning  the 
rights  and  duties  of  neutral  powers  and  persons  in  land  warfare,  see  La 
Deuxi^me  Conf6rence  Internationale  de  la  Pais,  1907,  Vol.  Ill,  pp.  179- 
230;  33-88.  For  the  discussions  in  the  plenary  sessions  of  the  Coirference, 
see  La  Deuxieme  Conference  Internationale  de  la  Paix,  1907,  Actes  et 
Documents,  Vol.  I,  pp.  125-129;  162-164. 


CHAPTER  XII 


ENEMY  MERCHANT  SHIPS  AT  THE  OUTBREAK  OF 
WAR,  CONVERSION  MERCHANT  SHIPS,  MARINE 
MINES,  BOMBARDMENT  OF  UNDEFENDED  PORTS 

1.  The  Status  of  Enemy  Merchant  Ships  at  Out- 
break OF  Hostilities* 

When  no  distinction  was  made  in  theory  and  practice 
between  the  status  of  private  property  of  the  enemy  upon  land 
and  upon  sea,  it  necessarily  followed  that  such  property  was 
liable  to  seizure  and  confiscation  wherever  found.  If  upon 
land  it  would  naturally  fall  prey  to  an  invading  army  and  be 
appropriated  to  a public  use  or  claimed  as  the  booty  of  the 
commander  or  camp  follower.  If  the  private  property  of  the 
enemy  were  within  the  jurisdiction  or  control  of  the  other 
belligerent  it  could  easily  be  confiscated  by  actual  seizure  or 
legislative  enactment.  The  gradual  immunity  extended  to 
private  property  of  the  enemy  upon  land,  reserving  always  the 
right  to  subject  it  to  requisition  or  to  contribution,  creates  a 
distinction  between  the  rights  of  capture  and  confiscation 
unless  the  principle  of  immunity  be  equally  extended  to 
unoffending  private  property  of  the  enemy  upon  the  high  seas. 
As  the  immunity  in  the  latter  case,  however  acceptable  in 
theory,  has  not  been  recognized  in  practice  it  follows  that, 
whether  logical  or  illogical,  the  distinction  exists  and  must  be 
borne  in  mind  in  discussing  the  status  of  the  enemy  and  enemy 
property. 

It  may  be  stated  that  international  law  recognizes  as  a 
general  principle  that  private  property  of  the  enemy  upon  land 

' For  the  proceedings  in  the  Conference  on  this  subject,  see  La  Deux- 
iSme  Conference  Internationale  de  la  Paix,  1907,  Vol.  Ill,  pp.  825-830, 
852-864,  884-886,  917-919,  936-957,  1030-1038,  1150-1155;  Vol.  I,  235- 
236,  250-255  (Report  of  M.  Henri  Fromageot). 

556 


THE  STATUS  OF  ENEMY  MERCHANT  SHIPS 


557 


is,  within  certain  limitations,  not  necessary  for  the  present 
discussion,  exempt  from  capture  and  confiscation.  It  is 
equally  true  that  private  property  of  the  enemy  upon  the  high 
seas  is  subject  to  capture,  and  the  determination  of  the  situa- 
tion of  the  property  determines  at  once  its  liability  to  or  its 
exemption  from  capture.  An  enemy  merchant  ship  is  there- 
fore liable  to  capture  if  found  within  the  zone  of  naval  opera- 
tions, unless  special  rules  and  regulations  exempt  it  from  the 
treatment  recognized  and  permitted  by  international  law. 
The  situation  of  the  merchant  vessel  would  seem  in  theory  to 
be  unimportant  because  the  right  of  capture  is  recognized,  but, 
as  a matter  of  fact,  custom,  which  is  the  very  life  of  the  law, 
treats  differently  property  situated  in  an  enemy  port  at  the 
outbreak  of  hostilities  and  private  property  of  the  enemy 
upon  the  high  seas.  Therefore,  it  is  advisable,  in  discussing 
the  general  subject,  to  consider,  first,  the  status  of  enemy  mer- 
chant vessels  found  in  port  upon  the  breaking  out  of  hostilities, 
and,  second,  to  discuss  the  status  of  enemy  merchant  vessels 
found  upon  the  high  seas  upon  the  breaking  out  of  war. 

If  an  enemy  merchant  vessel  moored  to  the  wharf  or  found 
within  the  territorial  waters  of  the  other  belligerent  were 
regarded  not  only  within  the  jurisdiction  of  the  belligerent  but 
as  thoroughly  subject  to  his  jurisdiction  as  other  private  prop- 
erty of  the  enemy  found  upon  the  land,  there  could  be  in  theory 
no  rational  distinction  between  the  property  and  the  treat- 
ment to  be  accorded  to  it.  Merchant  ships  of  the  enemy  are 
not,  however,  assimilated  to  private  property  upon  land,  but 
the  tendency  of  custom  is  to  give  to  them  greater  rights  and 
privileges  than  other  property  found  elsewhere  upon  the  out- 
break of  hostilities.  In  former  times  enemy  merchant  vessels 
found  in  the  harbor  or  within  the  territorial  waters  were  sub- 
ject to  capture,  and  when  hostilities  seemed  imminent  an 
embargo  was  placed  upon  such  property  so  that  departure 
would  be  illegal  and  would  subject  it  to  seizure  or  confiscation. 
The  result  would  be  that  upon  the  outbreak  of  war  the  property 
would  be  seized  and  passed  before  a court  as  legitimate  prize. 
The  older  law  is  briefly  stated  in  the  case  of  Lindo  v.  Rodney 
(1781,  Douglas,  615),  in  which  Lord  Mansfield  said:  < 


558 


THE  HAGUE  PEACE  CONFERENCES 


Ships  not  knowing  of  hostilities  come  in  by  mistake;  upon 
the  declaration  of  war  or  hostilities,  all  the  ships  of  the  enemy 
are  detained  in  our  ports,  to  be  confiscated  as  the  property  of 
the  enemy,  if  no  reciprocal  agreement  is  made. 

The  policy  and  reasoning  by  which  it  was  sought  to  support 
seizure  and  confiscation  are  set  forth  in  the  case  of  the  Boedes 
Lust  (1803,  5 C.  Robinson,  245),  tried  and  condemned  before 
the  great  Lord  Stowell,  when  Sir  William  Scott.  A Dutch  ship 
on  a voyage  from  Demerara  to  Batavia,  embargoed  at  the 
Cape  of  Good  Hope  by  a British  squadron  before  the  actual 
declaration  of  war  against  Holland  in  1803,  was  afterward 
condemned  as  enemy’s  property.  In  passing  judgment  Lord 
Stowell  said: 

This  was  the  state  of  the  first  seizure.  It  was  at  first  equiv- 
ocal; and  if  the  matter  in  dispute  had  terminated  in  reconcilia- 
tion, the  seizure  would  have  been  converted  into  a mere  civil 
embargo.  That  would  have  been  the  retroactive  effect  of  that 
course  of  circumstances.  On  the  contrary,  if  the  transactions 
end  in  hostility,  the  retroactive  effect  is  directly  the  other  way. 
It  impressed  the  hostile  character  upon  the  original  seizure. 
It  is  declared  to  be  no  embargo;  it  is  no  longer  an  equivocal  act, 
subject  to  two  interpretations;  there  is  a declaration  of  the 
animus,  by  which  it  was  done,  that  it  was  done  hostili  animo, 
and  is  to  be  considered  as  an  hostile  measure  ah  initio.  The  prop- 
erty taken  is  liable  to  be  used  as  the  property  of  persons,  tres- 
passers ab  initio,  and  guilty  of  injuries,  which  they  have  refused 
to  redeem  by  any  amicable  alteration  of  their  measures.  This 
is  the  necessary  course,  if  no  particular  compact  intervenes  for 
the  restitution  of  such  property  taken  before  a formal  declara- 
tion of  hostilities.  No  such  convention  is  set  up  on  either  side, 
and  the  State,  by  directing  proceedings  against  this  property 
for  condemnation,  has  signified  a contrary  intention.  Accord- 
ingly, the  general  mass  of  Dutch  property  has  been  condemned 
on  this  retroactive  effect;  and  this  property  stands  upon  the 
same  footing. 

However  artificial,  illogical,  or  unjust  we  may  consider  the 
reasons  advanced  by  Lord  Stowell,  the  case  of  the  Boedes  Lust 
was  unquestioned  law  and  actual  practice.  As  late  as  1854 
Dr.  Lushington  could  say : 

With  regard  to  an  enemy’s  property  coming  to  any  part  of  the 
Kingdom,  or  being  found  there,  being  seizable,  I confess  I am 
astonished  that  doubt  should  exist  on  the  subject.  I apprehend 


THE  STATUS  OF  ENEMY  MERCHANT  SHIPS 


559 


the  law  has  been  this,  that  it  is  competent  for  any  person  to 
take  possession  of  such  property,  unless  it  had  any  protection 
by  license,  or  by  some  declaration  emanating  by  the  authority 
of  the  Crown,  and  to  assist  the  Crown  to  proceed  against  it  to 
adjudication/ 

As  Professor  John  Basset  Moore  says,  in  his  monumental 
International  Law  Digest : 

It  was  formerly  the  practice  not  only  to  seize  enemy  vessels 
in  port  at  the  outbreak  of  war,  but  also  to  lay  an  embargo  upon 
them  in  expectation  of  war,  so  that  if  war  should  come  they 
might  be  confiscated.  A rule  of  precisely  the  opposite  effect 
has  been  enforced  in  recent  wars.^ 

The  innovation  came  from  a quarter  in  which  it  was  least 
expected,  for  on  October  4, 1853,  Turkey  said,  in  its  declaration 
of  war  against  Russia : 

The  Sublime  porte  does  not  consider  it  just  that,  agreeable 
to  ancient  usage,  an  embargo  should  be  laid  upon  Russian  mer- 
chant vessels.  Accordingly,  they  will  be  warned  to  proceed 
within  a period  to  be  fixed  hereafter  to  the  Black  Sea  or  to  the 
Mediterranean,  as  they  choose. 

The  Christian  governments  did  not  lag  behind  the  followers 
of  Mahomet.  The  Russian  Government  granted  full  liberty 
to  Turkish  vessels  in  its  ports  to  return  to  their  destination  till 
the  10th  (22d)  of  November.  On  March  27,  1854,  France 
issued  the  following  declaration : 

Article  1.  Six  weeks  from  the  present  date  are  granted  to 
Russian  ships  of  commerce  to  quit  the  ports  of  France.  Those 
Russian  ships  which  are  not  actually  in  our  ports,  or  which  may 
have  left  the  ports  of  Russia  previously  to  the  declaration  of 
war,  may  enter  into  French  ports  and  remain  there  for  the 
completion  of  their  cargoes  until  the  ninth  of  May,  inclusive. 

Great  Britain  issued  a similar  declaration  on  March  29, 1854. 
Further  indulgences  were  afterward  allowed  to  Russian  vessels 
which  had  sailed  for  English  and  French  ports  prior  to  May  15, 
1854,  and  Russia  on  its  part  allowed  English  and  French 
vessels  six  weeks  from  April  25,  1854,  to  load  their  cargoes  and 

’ Johanna  Emilie,  Spinks,  14,  (1854.) 

’Moore,  Digest  of  Inter.  Law,  Vol.  VII,  sec.  1196,  p.  453. 


560 


THE  HAGUE  PEACE  CONFERENCES 


sail  from  Russian  ports  in  the  Black  Sea,  the  Sea  of  Azof,  and 
the  Baltic,  and  six  weeks  from  the  opening  of  navigation  to 
leave  the  ports  of  the  White  Sea.^ 

We  thus  see  that  the  right  of  capture  and  confiscation  was 
recognized  in  the  Crimean  War,  but  following  the  initiative  of 
the  Turkish  Government,  the  great  maritime  States  of  Great 
Britain,  France,  and  Russia,  while  recognizing  the  right,  limited 
it  in  such  a way  as  to  free  from  capture  and  confiscation  enemy 
merchant  ships  found  in  their  respective  ports  and  to  give 
them  a certain  time  within  which  to  unload  their  cargo  and 
proceed  to  their  ports  of  destination.  Capture  is  always  a 
harsh  measure,  but  it  seems  peculiarly  harsh  to  capture  and 
confiscate  merchant  vessels  whose  owners  did  not  or  could  not 
know  of  the  outbeak  of  wars  and  who  in  no  way  either  directly 
or  remotely  influenced  or  were  concerned  in  the  outbreak  of 
war.  An  enemy  vessel  found  upon  the  high  seas  or  in  an 
enemy  port  after  such  warning  or  after  the  various  dates  pre- 
scribed might  be  treated  as  having  voluntarily  assumed  the 
risk  of  capture,  and  therefore  properly  exposed  to  it.  The 
precedent  of  1854  was  followed  in  the  Prussian- Austrian  War  of 
1866.  For  example,  the  Prussian  ministerial  declaration, 
June  21,  1866,  provided  that: 

Austrian  merchant  vessels  which  are  now  in  Prussian  ports,  or 
whose  masters,  unaware  of  the  breaking  out  of  the  war,  may 
enter  Prussian  ports,  shall,  on  condition  of  reciprocity,  have  six 
weeks  reckoned  from  the  day  of  their  entry  into  port  to  land 
their  cargo  and  to  go  away  with  a new  cargo,  contraband  of 
war  excepted.  On  the  expiration  of  this  term  they  must  leave 
port.  Austrian  merchant  vessels  whose  masters  are  aware  of 
the  breaking  out  of  the  war  are  not  permitted  to  enter  a Prus- 
sian port.* 

In  the  great  war  of  1870,  France  granted  a leave  of  thirty 
days,  as  appears  from  the  following  passage  from  a work  of 
authority : 

Merchant  vessels  belonging  to  the  enemy  which  were  actually 
in  the  French  ports,  or  which  entered  the  ports  in  ignorance 
of  the  war,  were  allowed  a delay  of  thirty  days  for  leaving,  and 

’ Halleck,  Inter.  Law  (3d  ed.,  by  Baker),  Vol.  I,  552,  533,  note. 

^ Moore,  Inter.  Law  Digest,  Vol.  VII,  sec.  1196,  p.  454. 


THE  STATUS  OF  ENEMY  MERCHANT  SHIPS  561 

safe-conducts  were  given  them  to  return  to  their  port  of  dispatch 
or  of  destination.  Vessels  which  took  in  cargoes  for  France, 
or  on  French  account,  in  enemies  or  neutral  ports  before  the 
declaration  of  war,  were  not  subject  to  capture,  but  were  allowed 
to  disembark  their  freights  in  the  French  ports,  and  afterwards 
received  safe-conducts  to  return  to  their  ports  of  dispatch.^ 

These  European  precedents  were  followed  by  the  United 
States  in  the  Spanish- American  War  of  1898.  In  the  Presi- 
dent’s proclamation,  dated  April  25,  1898,  for  the  government 
of  the  officers  of  the  United  States  during  the  war  with  Spain 
the  fourth  rule  read  as  follows: 

4.  Spanish  merchant  vessels,  in  any  ports  or  places  within 
the  United  States,  shall  be  allowed  till  May  21,  1898,  inclusive, 
for  loading  their  cargoes  and  departing  from  such  ports  or  places; 
and  such  Spanish  merchant  vessels,  if  met  at  sea  by  any  United 
States  ship,  shall  be  permitted  to  continue  their  voyage  if,  on 
examination  of  their  papers,  it  shall  appear  that  their  cargoes 
were  taken  on  board  before  the  expiration  of  the  above  term: 
Provided,  That  nothing  herein  contained  shall  apply  to  Spanish 
vessels  having  on  board  any  officer  in  the  military  or  naval  serv- 
ice of  the  enemy,  or  any  coal  (except  such  as  may  be  necessary 
for  their  voyage),  or  any  other  article  prohibited  or  contraband 
of  war,  or  any  dispatch  of  or  to  the  Spanish  Government. 

The  Spanish  Government  issued  a royal  decree,  dated  April 
23,  1898,  which  permitted,  five  days  from  the  date  of  publica- 
tion, the  departure  of  American  ships  from  Spanish  ports.  It 
was  not  so  liberal  as  the  American  proclamation,  for  the  Span- 
ish decree  did  not  in  terms  prohibit  the  capture  of  the  American 
merchantmen  after  their  departure  nor  did  it  provide  for  the 
entrance  and  discharge  of  American  ships  sailing  for  Spanish 
ports  before  the  war.  As  no  captures  were  made  by  Spain,  the 
exact  nature  and  extent  of  the  immunity  were  not  tested  before 
a Prize  Court.  The  President’s  proclamation,  however,  was 
passed  upon  by  the  courts  of  the  United  States,  and  the  inter- 
pretation thereof  was  liberal,  in  accordance  with  its  spirit. 
The  leading  case  on  the  subject  is  the  Buena  Ventura  (1899, 
175  U.  S.,  384).  The  vessel  in  question  was  a Spanish  mer- 
chant ship  captured  on  the  morning  of  April  22,  1898,  some 


Halleck,  Inter.  Law  (3d  ed.,  by  Baker),  Vol.  I,  532,  note. 


562 


THE  HAGUE  PEACE  CONFERENCES 


eight  or  nine  miles  off  the  Florida  coast.  At  the  time  of  capture 
the  vessel  was  on  a voyage  from  Ship  Island,  Mississippi,  to 
Rotterdam,  by  way  of  Norfolk,  Virginia,  with  a cargo  of  lum- 
ber. She  arrived  at  Ship  Island,  March  31,  1898,  and  sailed  for 
Rotterdam,  April  19,  with  a permit,  obtained  in  accordance 
with  the  laws  of  the  United  States,  to  call  at  Norfolk  for  supply 
of  bunker  coal.  When  captured  on  April  22  she  made  no 
resistance,  had  on  board  no  military  or  naval  officer,  and 
carried  no  arms  or  munitions  of  war.  The  question  at  issue 
was  therefore  whether  the  vessel  could  be  brought  within  the 
exemption  of  the  fourth  rule  of  the  proclamation  of  1898  as  to 
“Spanish  merchant  vessels,  in  any  ports  or  places  within  the 
United  States.”  In  delivering  the  opinion  of  the  Supreme 
Court,  Mr.  Justice  Peckham  observed,  to  quote  the  language 
of  Professor  Moore,i 

that  the  vessel  in  question,  as  a merchant  vessel  of  the  enemy 
carrying  on  an  innocent  commercial  enterprise  at  or  just  prior 
to  the  time  when  hostilities  began,  belonged  to  a class  which 
the  United  States  had  always  desired  to  treat  with  great  liber- 
ality, and  which  civilized  nations  had  in  their  later  practice  in 
fact  so  treated.  The  President’s  proclamation  should  therefore 
receive  “the  most  liberal  and  extensive  interpretation”  of  which 
it  was  capable,  and  where  two  or  more  interpretations  were  possi- 
ble the  one  most  favorable  to  the  belligerent  in  favor  of  whom 
the  proclamation  was  issued.  The  provision  that  “Spanish 
merchant  vessels  in  any  ports  or  places  within  the  United  States 
shall  be  allowed  until  May  21,  1898,  inclusive,  for  loading  their 
cargoes  and  departing”  might,  said  the  learned  justice,  be  held 
to  include  (1)  only  vessels  in  port  on  the  day  when  the  procla- 
mation was  issued,  namely,  April  26,  or  (2)  those  in  port  on  April 
21,  the  day  on  which  war  was  declared  by  Congress  to  have  be- 
gun, or  (3)  not  only  those  then  in  port,  but  also  any  that  had 
sailed  therefrom  on  or  before  May  21,  whether  before  or  after 
the  commencement  of  the  war  or  the  issuing  of  the  proclama- 
tion. The  court  adopted  the  last  interpretation.  While  the 
proclamation  did  not  in  so  many  words  include  vessels  which 
had  sailed  from  the  United  States  before  the  commencement 
of  the  war,  such  vessels  were,  said  Mr.  Justice  Peckham,  clearly 
within  its  “intention,”  under  the  liberal  construction  which  the 
court  felt  bound  to  give  it.  In  view  of  the  fact,  however,  that 
at  the  time  of  the  capture,  the  proclamation  of  April  26,  without 

* Digest  of  Inter.  Law,  Vol.  VII,  sec.  1196,  pp.  455-456. 


THE  STATUS  OF  ENEMY  MERCHANT  SHIPS 


563 


which  the  vessel  would  have  been  liable  to  condemnation,  had 
not  been  issued,  restitution  was  awarded  without  damages  or 
costs. 

The  recent  Russo-Japanese  War  likewise  followed  the  enlight- 
ened practice  dating  from  the  Crimean  War.  For  example, 
the  Imperial  Japanese  ordinance  of  February  9,  1904,  pro- 
vided that — 

Article  1 

Russian  merchant  ships  which  happen  to  be  moored  in  any 
Japanese  port  at  the  time  of  the  issue  of  the  present  rules 
may  discharge  or  load  their  cargo  and  leave  the  country  not 
later  than  February  16. 

Article  2 

Russian  merchant  ships  which  have  left  Japan  in  accordance 
with  the  foregoing  article  and  which  are  provided  with  a special 
certificate  from  the  Japanese  authorities  shall  not  be  captured  if 
they  can  prove  that  they  are  steaming  back  direct  to  the  nearest 
Russian  port,  ora  leased  port,  or  to  their  original  destination; 
this  measure  shall,  however,  not  apply  in  case  such  Russian  mer- 
chant ships  have  once  touched  at  a Russian  port  or  a leased  port. 

And  the  Imperial  Russian  order  of  February  14,  1904,  pro- 
vided that — 

Japanese  trading  vessels  which  were  in  Russian  ports  or 
havens  at  the  time  of  the  declaration  of  the  war  are  authorized 
to  remain  in  such  ports  before  putting  out  to  sea  with  goods 
which  do  not  constitute  articles  of  contraband  during  the  delay 
required  in  proportion  to  the  cargo  of  the  vessel,  but  which  in 
any  case  must  not  exceed  forty-eight  hours  from  the  time  of 
the  publication  of  the  present  declaration  by  the  local  author- 
ities. 

It  is  thus  seen  that  in  no  less  than  five  great  wars  of  the  last 
fifty  years  an  exemption  was  made  in  favor  of  enemy  merchant 
vessels  in  port  at  the  outbreak  of  hostilities,  and  that  a longer 
or  shorter  period  was  fixed  within  which  such  vessels  might 
safely  leave  their  ports  and  proceed  to  their  destination. 
Although  the  custom  is  modern,  it  can  not  be  said  to  be  limited 
to  any  particular  quarter  of  the  world ; for  the  States  generally 
have  recognized  the  exemption  in  their  recent  wars,  not  only 
in  Europe  and  America,  but  also  in  Asia.  Such  a custom, 
however  recent  it  may  be,  may  rightly  claim  to  form  a part  of 


564 


THE  HAGUE  PEACE  CONFERENCES 


the  Law  of  Nations.  It  is  therefore  a source  of  regret  that  the 
Second  Peace  Conference  refused  to  recognize  it  as  a right  but 
simply  as  a privilege,  a delai  defaveur,  which  may  be  accorded 
or  refused  at  the  option  of  the  belligerent,  and  that  the  privi- 
lege was  unaccompanied  by  any  recommendation  of  a period  of 
time  within  which  the  privilege  in  question  should  be  accorded. 
The  exact  wording  of  the  first  two  articles  of  the  convention 
follows : 

Article  1 

When  a merchant  ship  belonging  to  one  of  the  belligerent 
Powers  is  at  the  commencement  of  hostilities  in  an  enemy 
port,  it  is  desirable  that  it  should  be  allowed  to  depart  freely, 
either  immediately  or  after  a reasonable  number  of  days  of 
grace,  and  to  proceed,  after  being  furnished  with  a pass,  direct  to 
its  port  of  destination  or  any  other  port  indicated. 

The  same  rule  should  apply  in  the  case  of  a ship  which  has 
left  its  last  port  of  departure  before  the  commencement  of  the 
war  and  entered  a port  belonging  to  the  enemy  while  still  igno- 
rant that  hostilities  had  broken  out. 

Article  2 

A merchant  ship  unable,  owing  to  circumstances  of  force 
majeure,  to  leave  the  enemy  port  within  the  period  contem- 
plated in  the  above  article,  or  which  was  not  allowed  to  leave, 
can  not  be  confiscated. 

The  belligerent  may  only  detain  it,  without  payment  or  com- 
pensation, but  subject  to  the  obligation  of  restoring  it  after  the 
war,  or  requisition  it  on  payment  of  compensation. 

It  may  be  said  that  the  expression  “it  is  desirable”  that  the 
vessels  should  be  allowed  to  depart  freely  amounts  in  reality  to 
a command,  and  that  the  practice  of  the  future  will  recognize 
the  custom  as  freely  as  it  has  done  in  the  past,  thus  establishing 
as  a right  what  the  Conference  modestly  denominates  a privi- 
lege. If  such  be  the  case,  the  opposition  of  Great  Britain  to 
the  recognition  of  the  right  will  be  as  futile  in  practice  as  it  was 
unreasonable  at  the  Conference. 

Passing  to  the  second  branch  of  the  question,  namely,  the 
treatment  accorded  to  enemy  merchant  ships  which  prior  to 
the  outbreak  of  war  had  left  port  destined  to  any  port  or  place 
of  the  other  belligerent,  the  enlightened  policy  of  the  European 
States  in  their  recent  wars  of  1854,  1866  and  1870  has  been 


THE  STATUS  OP  ENEMY  MERCHANT  SHIPS 


565 


stated  in  the  extracts  already  quoted  from  their  respective 
declarations.  The  more  recent  practice  will  be  briefly  set 
forth.  The  fifth  rule  of  the  Presidential  proclamation  of  April 
26,  1898,  provided  that: 

Any  Spanish  merchant  vessel  which,  prior  to  April  21,  1898, 
shall  have  sailed  from  any  foreign  port  bound  for  any  port 
or  place  in  the  United  States  shall  be  permitted  to  enter  such 
port  or  place,  and  to  discharge  her  cargo,  and  afterward  forth- 
with to  depart  without  molestation;  and  any  such  vessel,  if  met 
at  sea  by  any  United  States  ship,  shall  be  permitted  to  continue 
her  voyage  to  any  port  not  blockaded. 

It  has  previously  been  observed  that  the  Spanish  decree  did 
not  provide  for  the  entrance  and  discharge  of  American  ships 
sailing  for  Spanish  ports  before  the  war,  but,  as  no  captures 
were  made  by  Spain,  the  less  liberal  provisions  of  the  Spanish 
decree  did  not  affect  American  commerce.  Rule  5 of  the 
American  proclamation  was  judicially  interpreted  in  the  case 
of  the  Pedro  (175  U.  S.,  354).  This  vessel,  sailing  under  the 
Spanish  flag  and  officered  and  manned  by  Spaniards,  was 
loaded  in  Antwerp  for  Cuba,  and  on  March  18, 1898,  was  char- 
tered by  an  American  firm  to  proceed  to  Pensacola,  Florida, 
or  Ship  Island,  Mississippi,  for  a cargo  of  lumber  for  Rotterdam 
or  Antwerp.  Shortly  after  this  date  the  Pedro  sailed  from 
Antwerp  with  a cargo  of  merchandise  for  Havana  and  Cien- 
fuegos.  She  arrived  at  Havana  on  April  17  and,  after  dis- 
charging her  cargo,  sailed  on  the  22d  for  Santiago,  Cuba,  with 
a small  quantity  of  general  merchandise  taken  at  Havana. 
While  pursuing  the  voyage  from  Havana  to  Santiago,  Cuba, 
she  was  captured  on  the  same  day,  April  22,  a few  miles  from 
Havana  by  the  United  States  blockading  fleet.  In  delivering 
the  opinion  of  the  Supreme  Court,  Chief  Justice  Fuller  held 
that  the  Pedro  did  not  fall  within  the  exemption  contained  in 
rule  5;  that  she  lay  at  Havana  from  the  17th  of  April  to  the 
22d;  that  she  cleared  from  Havana  April  22,  a day  after  the 
war  began;  that  she  had  then  no  cargo  for  any  port  of  the 
United  States,  but  only  for  an  enemy  port,  namely,  Santiago 
and  Cienfuegos.  It  could  not  therefore  be  said  that  she  had 


566  THE  HAGUE  PEACE  CONFERENCES 

left  a foreign  port  in  ignorance  of  the  “perilous  condition  of 
affairs;”  that  it  must  be  assumed  that  she  either  knew  of  hos- 
tilities or  had  been  advised  that  hostilities  were  imminent. 
She  was  not  bringing  a cargo  to  the  United  States  for  the 
increase  of  its  resources  and  the  convenience  of  its  citizens,  but 
she  was  an  enemy  vessel  trading  with  an  enemy  port.  The 
Supreme  Court  therefore  affirmed  the  condemnation  of  the 
District  Court,  and  held  squarely  that  the  contract  to  proceed 
ultimately  to  a port  of  the  United  States  did  not  bring  the 
vessel  within  the  exemption  of  the  fifth  rule.  The  decision  of 
the  Supreme  Court  is  technically  correct,  but  it  seems  illiberal 
both  in  its  interpretation  and  application  of  the  exemption 
meant  to  be  conferred  by  the  fifth  rule,  as  was  pointed  out  by 
Mr.  Justice  White  in  a strong  dissenting  opinion,  in  which 
Justices  Brewer,  Shiras  and  Beckham  concurred.  While  it  is 
true  that  a statute  in  derogation  of  the  common  law  should  be 
strictly  construed,  this  principle  clearly  should  not  apply  to  an 
exception  in  the  common  law  of  nations  made  in  the  interest  of 
innocent  enemy  subjects  engaged  in  innocent  commerce. 

In  the  recent  Russo-Japanese  War  an  immunity  of  a like 
nature  was  extended  by  Article  3 of  the  Imperial  Japanese 
ordinance  of  February  9,  1904,  the  exact  text  of  which  is  as 
follows ; 

Russian  steamers  which  may  have  left  for  a Japanese  port 
before  February  16  may  enter  our  ports,  discharge  their  cargoes 
at  once,  and  leave  the  country.  The  Russian  steamers  coming 
under  the  above  category  shall  be  treated  in  accordance  with 
Article  2.‘ 

It  will  be  seen,  therefore,  that  recent  enlightened  practice 
permits  enemy  merchant  ships  which  have  left  their  last  port 
of  departure  before  the  commencement  of  the  war,  or  within  a 
certain  fixed  period,  to  continue  their  journey  unmolested  to 
the  port  or  place  within  the  territory  of  the  other  belligerent, 
to  unload  their  cargoes  and  to  return  to  the  home  port  without 
danger  of  capture  during  the  voyage.  The  convention  con- 


Quoted  at  p.  662. 


THE  STATUS  OF  ENEMY  MERCHANT  SHIPS 


567 


cerning  the  status  of  enemy  merchant  ships  unfortunately  is 
less  liberal  than  recent  practice.  Article  3 is  as  follows : 

Enemy  merchant  ships  which  left  their  last  port  of  departure 
before  the  commencement  of  the  war  and  are  encountered  on 
the  high  seas  while  still  ignorant  of  the  outbreak  of  hostilities 
can  not  be  confiscated.  They  are  only  liable  to  detention  on 
the  understanding  that  they  shall  be  restored  after  the  war  with- 
out compensation,  or  to  be  requisitioned,  or  even  destroyed, 
on  payment  of  compensation,  but  in  such  case  provision  must 
be  made  for  the  safety  of  the  persons  on  board,  as  well  as  the 
security  of  the  ship’s  papers. 

After  touching  at  a port  in  their  own  country,  or  at  a neutral 
port,  these  ships  are  subject  to  the  laws  and  customs  of  maritime 
war. 

The  seeming  exemption  is  rather  illusory,  for  the  exemption 
from  capture  is  based  upon  the  fact  that  at  the  time  of  seizure 
the  enemy  merchant  ships  were  still  ignorant  of  the  outbreak 
of  hostilities.  If  they  had  been  informed  of  the  existence  of 
hostilities  they  would  seem  to  be  liable  to  capture,  for  the 
merchant  vessels  of  today  have  discarded  canvas  for  steam, 
and  it  rarely  happens  that  a vessel  is  provided  on  the  outbound 
voyage  with  sufficient  coal  for  the  return.  It  would  seem, 
therefore,  that  the  vessel  is  exposed  to  capture,  because  it  could 
not  safely  continue  its  voyage  to  the  belligerent  port,  and,  if 
it  seeks  to  return  to  the  home  port,  the  vessel  is  liable  to  cap- 
ture, with  little  chance  of  escape  by  reason  of  the  lack  of  means 
to  continue  its  voyage.  If  the  merchant  vessel  is  ignorant  of 
the  outbreak  of  hostilities  it  may  not  be  captured,  but  it  may 
be  detained  subject  to  restoration  at  the  end  of  the  war  with- 
out compensation.  The  value  of  the  vessel  may  be  seriously 
depreciated  in  case  of  a long  war.  If  requisitioned,  it  is 
unlikely  that  the  transaction  will  be  profitable  to  the  original 
owner,  and  if  destroyed  it  is  improbable  that  the  compensation 
will  at  all  be  adequate.  The  article  in  question,  therefore, 
can  not  be  considered  an  advance ; it  is  a distinct  limitation  of 
customary  rights.  Article  4 of  the  convention  is  as  follows: 

Enemy  cargo  on  board  the  vessels  referred  to  in  Articles  1 
and  2 is  likewise  liable  to  be  detained  and  restored  after  the 
termination  of  the  war  without  payment  of  compensation,  or 
to  be  requisitioned  on  payment  of  compensation,  with  or  with- 
out the  ship. 


568 


THE  HAGUE  PEACE  CONFERENCES 


The  same  rule  applies  in  the  case  of  cargo  on  board  the 
vessels  referred  to  in  Article  3. 

The  provisions  depending  upon  Articles  1 and  3,  already 
quoted,  would  seem  to  require  no  special  explanation  or  com- 
ment. 

The  convention  as  a whole  was  a compromise  between  those 
who  believed  in  the  existence  of  a right  and  those  who  refused 
to  recognize  the  legal  validity  of  the  custom  which  has  grown 
up  in  recent  years.  As  in  most  compromises  the  result  is 
unsatisfactory.  The  convention  can  not  be  called  progressive, 
for  it  questions  a custom  which  seems  generally  established  and 
its  adoption  would  seem  to  sanction  less  liberal  and  enlightened 
practice.  The  United  States  delegation  therefore  refused  to 
sign  the  convention  and  its  acceptance  has  not  been  recom- 
mended by  the  Department  of  State. 

2.  The  Conversion  of  Merchantmen  into  Warships^ 

The  first  question  on  the  program  of  the  Fourth  Commission 
of  the  Second  Conference  was  the  transformation  of  merchant 
vessels  into  warships,  a subject  of  present  interest  owing  to 
unexpected  incidents  of  the  recent  Russo-Japanese  war  in  the 
extreme  orient.  Before  the  declaration  of  Paris  of  1856  the 
fighting  force  of  an  enemy  upon  the  sea  consisted,  first,  of 
public  armed  vessels  subject  only  to  the  control  of  the  govern- 
ment in  whose  employ  they  were;  second,  privateers,  that  is 
to  say,  vessels  owned  by  adventurers,  provided  with  a com- 
mission to  seize  and  by  the  decision  of  a court  of  prize  acquire 
title  to  enemy  property  captured  by  them  upon  the  high  seas. 
The  motive  of  the  first  class  was  to  destroy  the  fighting  force 
of  the  enemy,  and,  at  the  same  time,  by  reaching  private 
property  to  destroy  its  means  of  resistance  and  thus  bring 
it  to  terms.  The  object  of  the  privateer  was  private  gain,  for, 
disguise  the  fact  as  we  will,  the  privateer  was  an  adventurer 
little  better  than  a buccaneer,  permitted  to  prey  upon 

' See  La  Deuxteme  Conference  Internationale  de  la  Paix  (1907)  Vol.  Ill, 
pp.  744-746,  813-825,  846-850,  916-917,  930-936,  1004-1014,  1023-1024, 
1038-1040,  1078-1082,  1135-1140;  Vol.  I,  235,  239-245  (Report  of  M. 
Henri  Fromageot). 


CONVERSION  OF  MERCHANTMEN 


569 


enemy  commerce  at  his  own  risk  for  his  own  profit.  Inci- 
dentally the  capture  of  private  property  of  the  enemy 
might,  theoretically,  at  least,  shorten  the  war.  The  man- 
of-war  is  subjected  to  naval  discipline  with  ample  power  to 
punish  violations  of  the  laws  of  war.  The  privateer,  on  the 
other  hand,  although  subject  to  control  in  theory,  was  in  prac- 
tice its  own  master,  with  the  result  that  abuses  grew  up  and 
were  tolerated  provided  only  they  enhanced  profit.  Recog- 
nizing the  evils  of  the  system  of  privateering  and  the  further 
fact  that  war  is  in  reality  a hostile  relation  between  State  and 
State  to  be  prosecuted  solely  by  agents  of  the  government,  the 
system  of  privateering  was  abolished  by  the  Declaration  of 
Paris  of  1856,  in  express  terms — “Privateering  is  and  remains 
abohshed” — to  which  declaration  the  civilized  States  have 
adhered  with  the  exception  of  the  United  States.  The  terms 
of  the  Declaration  are  really  important,  because  privateering 
is  not  merely  abolished : it  is  to  remain  abolished,  the  intention 
of  the  declaration  clearly  being  that  the  system  begotten  in 
greed,  and  nurtured  in  fraud,  should  be  an  outlaw  in  the  future. 

The  introduction  of  steam,  with  the  consequent  disappear- 
ance of  sailing  craft,  the  appearance  of  the  iron-clad  and  the 
immense  fighting  strength  of  the  modern  man-of-war  pro- 
duced, it  should  be  said,  by  a corresponding  expense,  have 
made  it  impossible  for  private  parties  to  indulge  in  privateering 
even  if  the  law  permitted  it.  But  the  demands  of  the  modern 
man-of-war  are  very  great.  It  cannot  carry  its  coal  as  Lord 
Nelson  carried  his  canvas,  so  that  it  is  important  to  supply  the 
modem  fleet  with  transports  and  light  craft  either  for  the 
support  of  the  fleet  or  for  the  performance  of  minor  services. 
There  is  danger,  however,  that  this  auxiliary  craft  may  be 
the  privateersman  in  disguise,  because  for  the  performances  of 
these  lighter  duties,  merchant  vessels  are  taken  into  service 
and  indeed  the  larger  steamships  are  built  with  a view  to  the 
possibility  of  eventual  use  in  time  of  war. 

The  transformation  of  merchant  vessels  into  men-of-war  is 
clearly  legitimate  as  long  as  war  is  a recognized  system;  for  if 
a nation  may  build  a vessel  for  warlike  purposes  it  clearly  can 
convert  a merchantman  into  a man-of-war.  It  is  at  once  a 


570 


THE  HAGUE  PEACE  CONFERENCES 


question  of  national  sovereignty  and  expediency.  But  it  is  im- 
portant to  determine  the  conditions  under  which  the  trans- 
formation may  take  place.  Shall  it  take  place  in  time  of  peace, 
although  in  anticipation  of  war,  or  may  it  take  place  after  the 
declaration  of  war?  It  would  seem  that  each  query  should  be 
answered  in  the  affirmative.  A more  difficult  question  is  the 
determination  of  the  locality  in  which  the  transformation  may 
be  effected.  If  the  transformation  is  to  be  permitted,  it  follows 
without  argument  that  it  may  take  place  anywhere  within  the 
territorial  waters  of  the  transforming  State  as  well  as  within 
territory  occupied  by  it  or  subject  to  its  exclusive  jurisdiction. 
It  is  more  difficult  to  determine  whether  the  conversion  should 
be  permitted  upon  the  high  seas.  From  one  point  of  view 
this  should  be  permissible,  because  the  high  seas  are  not  sub- 
ject to  the  exclusive  control  of  any  nation,  and  a merchantman 
upon  the  high  seas  is  by  international  law  under  the  exclusive 
control  of  the  nation  whose  flag  it  flies.  But  this  is  the  argu- 
ment of  the  belligerent  who  stands  upon  the  extreme  letter 
of  his  right  in  forgetfulness  or  disregard  of  neutral  rights.  As 
a man-of-war  possesses  the  right  to  search  neutral  vessels  sus- 
pected of  unneutral  conduct,  whether  such  vessel  carry  contra- 
band or  be  destined  to  a blockaded  port,  it  follows  that  the 
neutral  has  a right  to  know  the  extent  of  the  belligerent  fleet, 
and  that  it  shall  not  be  exposed  to  the  visit  and  search  of  a 
merchantman  upon  the  high  seas,  which  has  assumed  the 
character  of  a man-of-war  for  the  purpose  of  visit  and  search 
and  which  may  renounce  this  character  immediately  after  the 
search  or  at  its  pleasure. 

This  latter  illustration,  no  mere  supposition,  was  a pictur- 
esque practice  of  Russia  in  its  recent  war  with  Japan.‘  Shall 
the  transformation  when  effected  be  for  the  duration  of  the 
war,  or  shall  the  vessel  cameleon-like  be  permitted  to  change 
its  nature  either  upon  the  command  of  its  government  or  when 
the  necessities  of  the  case  seem  to  suggest  it?  It  would  seem 

* See  Lawrence’s  War  and  Neutrality  in  the  Far  East  (2d  ed.)  pp. 
205-208,  212-214;  Hershey’s  International  Law  and  Diplomacy  of  the 
Russo-Japanese  War,  pp.  138-142,  151-153. 


CONVERSION  OF  MERCHANTMEN 


571 


reasonable  to  insist  that  the  transformation  if  effected  should 
be  permanent,  at  least  for  the  duration  of  the  war.  Finally, 
the  transformed  vessel  should  be  commissioned  as  a man-of- 
war,  subjected  to  naval  discipline  and  enumerated  among  the 
naval  forces  of  the  belligerent. 

The  difficulties  of  the  situation  require  definition  lest  insen- 
sibly the  evils  of  privateering  reappear.  The  question  arose 
during  the  Franco-German  War  of  1870  when  in  August  of 
that  year  Prussia  ordered  the  creation  of  a volunteer  navy. 

The  owners  of  vessels  were  invited  to  fit  them  out  for  attack 
on  French  ships  of  war,  and  large  premiums  for  the  destruction 
of  any  of  the  latter  were  offered.  The  crews  of  vessels  belonging 
to  the  volunteer  navy  were  to  be  under  naval  discipline,  but 
they  were  to  be  furnished  by  the  owners  of  the  ships;  the  officers 
were  to  be  merchant  seamen,  wearing  the  same  uniform  as  naval 
officers,  and  provided  with  temporary  commissions,  but  not 
forming  part  of,  or  attached  to,  the  navy  in  any  way,  though 
capable  of  receiving  a commission  in  it  as  a reward  for  excep- 
tional services;  the  vessels  were  to  sail  under  the  flag  of  the 
North  German  navy.^ 

It  is  a matter  of  dispute  whether  the  Prussian  volunteer 
navy  was  not  a violation  of  the  spirit  if  not  of  the  letter  of  the 
Declaration  of  Paris,  for  the  declaration  clearly  meant  not 
merely  to  eliminate  the  privateer  but  the  use  of  other  than 
national  property  under  the  command  of  responsible  officers 
of  the  government  in  the  conduct  of  naval  war.  To  invoke 
again  the  great  authority  of  Mr.  Hall ; 

The  incorporation  of  a part  of  the  merchant  marine  of  a 
country  in  its  regular  navy  is  of  course  to  be  distinguished  from 
such  a measure  as  that  above  discussed.  A marked  instance 
of  incorporation  is  supplied  by  the  Russian  volunteer  fleet. 
The  vessels  are  built  at  private  cost,  and  in  time  of  peace  they 
carry  the  mercantile  flag  of  their  country;  but  their  captain  and 
at  least  one  other  officer  hold  commissions  from  their  sovereign, 
they  are  under  naval  discipline,  and  they  appear  to  be  employed 
solely  in  public  services,  such  as  the  conveyance  of  convicts  to 
the  Russian  possessions  on  the  Pacific.  Taking  the  circum- 
stances as  a whole,  it  is  difficult  to  regard  the  use  of  the  mercan- 
tile flag  as  serious;  they  are  not  merely  vessels  which  in  the  event 
of  war  can  be  instantaneously  converted  into  public  vessels  of 

* Hall’s  International  Law  (5th  ed.),  p.  527. 


572 


THE  HAGUE  PEACE  CONFERENCES 


the  State,  they  are  properly  to  be  considered  as  already  belong- 
ing to  the  imperial  navy.  The  position  of  vessels  belonging  to 
the  great  French  mail  lines  is  different.  They  are  commanded 
by  a commissioned  officer  of  the  navy,  but  so  long  as  peace  lasts 
their  employment  is  genuinely  private  and  commercial;  means 
is  simply  provided  by  which  they  can  be  placed  under  naval 
discipline  and  turned  into  vessels  of  war  as  soon  as  an  emer- 
gency arises.  They  are  not  now  incorporated  in  the  French 
navy,  but  incorporation  would  take  place  on  the  outbreak  of 
hostilities.  [The  liners  which  of  recent  years  have  been 
subsidized  by  the  British  Government  in  return  for  a lien  on 
their  services  as  cruisers  in  time  of  war,  stand  on  a similar  foot- 
ing, except  that  in  peace  time  they  are  not  under  the  command 
of  an  officer  in  the  Royal  navy.]  * 

Nations  look  upon  merchant  marine  very  much  in  the 
way  that  the  militia  is  considered,  although  the  analogy 
is  imperfect,  because  the  militia  is  organized  for  service 
in  future  war,  whereas  the  merchant  marine  is  primarily 
pacific.  However,  it  seems  to  be  beyond  controversy  that 
nations  will  in  the  future  press  merchant  ships  into  naval 
service,  and  it  is  therefore  a matter  of  importance  to  determine 
the  exact  status  of  the  auxiliary  fleet.  It  is  a subject  of 
sincere  regret  that  the  convention  drafted  and  adopted  by 
the  Conference  covers  but  a small  part  of  the  subject. 

The  convention,  however,  was  an  honest  endeavor  and  its 
preamble  is  honest;  for  it  states  it  to  be  desirable 

in  view  of  the  incorporation  in  time  of  war  of  merchant  ships 
in  the  fighting  fleet,  to  define  the  conditions  subject  to  which 
this  operation  may  be  effected; 

and  in  the  next  place  it  confesses  its  limitations,  stating 
frankly  that: 

whereas,  however,  the  Contracting  Powers  have  been  unable 
to  come  to  an  agreement  on  the  question  whether  the  conversion 
of  a merchant  ship  into  a warship  may  take  place  on  the  high 
seas,  it  is  understood  that  the  question  of  the  place  where  such 
conversion  is  effected  remains  outside  the  scope  of  this  agree- 
ment, and  is  in  no  way  affected  by  the  following  rules. 

The  convention  thereupon  assumes  the  right  to  convert 

'Ibid.  529.  The  passage  in  brackets  is  an  addition  of  J.  B.  Atlay,  the 
editor  of  the  fifth  edition. 


CONVERSION  OF  MERCHANTMEN 


573 


merchant  ships  into  men-of-war  and  regulates  and  controls  its 
exercise.  For  example,  Article  1 provides  that  a merchant 
ship  in  order  to  be  considered  a man-of-war  must  be  placed 

under  the  direct  authority,  immediate  control,  and  respon- 
sibility of  the  power  whose  flag  it  flies. 

As  was  said  by  M.  Fromageot,  the  learned  reporter  of  the 
Fourth  Commission: 

The  first  article  presents  a principle  which  is,  so  to  speak, 
the  corollary  of  the  Declaration  of  Paris,  and  has  for  it  object 
to  give  every  guarantee  against  a return  more  or  less  disguised 
to  privateering.^ 

The  next  article  provides,  and  very  properly,  that  the  con- 
verted ship  must  bear  the  outward  and  distinguishing  appear- 
ance of  a man-of-war  of  its  nationality.  (Article  2.)  The 
first  article  thus  determines  the  validity  of  the  transformation 
as  a matter  of  law  whereby  to  tax  the  government  with  respon- 
sibility. The  second  paragraph  is  conceived,  not  merely  in  the 
interest  of  the  belligerent  but  primarily  in  the  interest  of  the 
neutral,  so  that  the  character  of  the  vessel  may  be  evident 
at  a distance  by  its  outward  appearance. 

But  it  is  not  sufficient  that  the  vessel  be  transformed  and 
that  it  bear  external  marks  of  such  transformation.  The 
commander  should  be  in  the  service  of  the  State  and  duly 
commissioned  by  competent  authorities;  his  name  should 
appear  in  the  list  of  officers  of  the  fighting  fleet  (Article  3) ; the 
crew  should  be  subject  to  military  discipline  (Article  4) ; and 
the  converted  ship  should  observe  in  all  its  operations  the  laws 
and  customs  of  war  (Article  5).  The  reality  and  good  faith  of 
the  transformation  are  thus  assured  by  subjecting  the  vessel 
to  the  control  of  a naval  officer  and  the  crew  to  military  disci- 
pline. The  requirement  that  the  converted  vessel  observe  the 
laws  and  customs  of  war  is  a guarantee  against  the  relapse  into 
the  barbarism  of  privateering.  The  American  naval  delegate. 
Admiral  Sperry,  objected  to  the  last  requirement  and  proposed 
to  suppress  the  article  as  unnecessary  and  as  constituting  in 

* Report  of  M.  Henri  Fromageot,  La  Deuxi^me  Conf4rence  Internationale 
de  la  Paix  (1907),  Actes  et  Documents,  Vol.  I,  p.  244. 


574 


THE  HAGUE  PEACE  CONFERENCES 


his  opinion  an  embarrassing  distinction  for  certain  merchant 
vessels  acquired  and  regularly  commissioned  by  the  United 
States  in  time  of  peace  as  a part  of  its  fleet.  Admiral  Sperry’s 
motion  was  opposed  by  Dr.  Lammasch  for  the  reason  that  the 
suppression  of  Article  5 would  constitute  an  embarrassing  dis- 
tinction between  transformed  vessels  on  the  one  hand  and  war 
vessels  on  the  other.  The  article  as  framed  was  adopted  sub- 
ject to  the  reserve  of  Admiral  Sperry 

Article  6,  the  last  article  of  the  convention  requiring  consid- 
eration, provides  that  the  belligerent  should  as  soon  as  possible 
register  the  converted  vessel  in  its  list  of  warships,  thus 
assuring  the  publicity  of  the  transformation.  It  is  hardly 
necessary  to  add  that  the  article  is  in  the  interest  of  the  neutral. 

The  learned  reporter  of  the  convention  stated  it  to  be  a 
corollary  to  the  Declaration  of  Paris  abolishing  privateering. 
This  fact  was  recognized  by  the  American  delegation  and 
General  Porter  on  its  behalf  stated. 

It  is  evident  that  the  propositions  ....  have  for  their 
principal  object  the  reiteration  of  the  declaration  of  Paris  relat- 
ing to  the  abolition  of  privateering.  It  is  well  known  that  the 
government  of  the  United  States  of  America  has  not  adhered 
to  this  declaration  solely  for  the  reason  that  the  declaration 
did  not  recognize  the  inviolability  of  private  property  of  the 
enemy  at  sea.  For  this  reason  the  propositions  submitted 
present  questions  solely  for  the  consideration  of  the  signatories 
of  the  Declaration  of  Paris,  and  in  consequence  thereof  our 
delegation  must,  for  the  moment,  decline  to  take  part  in  the 
discussion  and  abstain  from  voting.  If,  however,  the  Con- 
ference by  its  action,  shall  establish  the  inviolability  of  private 
property  at  sea,  this  delegation  will  be  happy  to  vote  for  the 
abolition  of  privateering.^ 

The  American  delegation  abstained  on  the  final  vote  taken 
for  the  reason  advanced  by  General  Porter. 

The  convention  was  not  accepted  by  the  American  delega- 
tion at  The  Hague,  nor  was  it  submitted  to  the  Senate  for 


* La  Deuxieme  Conference  Internationale  de  la  Paix  (1907),  Vol.  Ill, 
Fourth  Commission,  Comite  d’Examen,  12th  Session,  p.  1040. 

^ Ibid.,  Fourth  Commission,  13th  Session,  pp.  916-917. 


CONVERSION  OF  MERCHANTMEN 


575 


approval . It  cannot  be  denied  that  the  convention  as  adopted, 
limited  solely  to  signatory  powers  (Article  7),  is  very  modest 
and  of  slight  practical  value,  because  the  question  is  not 
whether  transformation  be  permitted,  but  the  determination  of 
the  locality  and  conditions  under  which  it  may  be  permis- 
sible. The  convention  is  at  best  but  evidence  of  transformation . 
It  consciously  excludes  vital  questions  and  by  so  doing  sacrifices 
substance  to  form.  For  example,  in  the  recent  Russo-Japanese 
War  two  vessels,  the  Peterburg  and  Smolensk,  passed  the  Dar- 
danelles, flying  the  commercial  flag,  declaring  that  they  were 
merchant  ships  and  maintaining  such  character  en  route 
through  the  Suez  Canal.  Upon  entering  the  Red  Sea  guns 
were  brought  out  of  the  hold  and  mounted,  the  armament  was 
soon  completed,  the  vessels  assumed  the  character  of  warships, 
proceeded  to  cruise  against  and  prey  upon  neutral  commerce. 
The  action  of  Russia  was  questionable  from  two  points  of  view, 
first  because  the  Convention  of  March  31, 1856,  and  the  treaty 
signed  at  London  on  March  3,  1871,  closed  the  Dardanelles  and 
Bosphorus  to  men-of-war.  If  the  Russian  vessels  were  men- 
of-war  they  had  no  right  to  pass  the  Bosphorus  and  the  Dar- 
denelles;  if  they  were  merchantmen  they  had  no  right  to 
visit  and  search,  to  seize  and  prey  upon  commerce,  whether 
belligerent  or  neutral.  If  the  vessels  improperly  passed  the 
Bosphorus  and  Dardanelles,  they  committed  a wrong  and  on 
familiar  doctrine  should  not  be  permitted  to  take  advantage  of 
their  own  wrong.  In  the  next  place,  supposing  they  were 
merchant  vessels,  they  could  not  exercise  belligerent  rights 
unless  commanded  as  war  vessels  without  violating  the  letter 
as  well  as  the  spirit  of  the  Declaration  of  Paris.  The  impor- 
tant and  difficult  question  arises  whether  merchant  vessels 
may  be  transformed  into  men-of-war  upon  the  high  seas,  a 
question  which  the  Conference  left  undecided.  The  matter, 
however,  was  discussed,  and  Great  Britain,  Japan,  Holland  and 
the  United  States  proposed  that  transformation  should  only 
be  permitted  within  a national  or  occupied  port.  Italy 
accepted  this  view,  but  proposed  an  exception  in  favor  of 
vessels  upon  the  high  seas  at  the  declaration  of  war.  Ger- 


576 


THE  HAGUE  PEACE  CONFEKENCES 


many,  Russia  and  France  maintained  on  the  contrary  the  right 
of  transformation  even  upon  the  high  seas.* 

In  the  presence  of  such  opposing  views  the  Conference  was 
forced  to  adjourn  consideration  of  the  matter.  Again,  it  will 
be  noted  that  the  convention  does  not  state  that  the  trans- 
formation may  not  be  subject  to  retransformation  during  the 
course  of  one  and  the  same  war,  and  if  the  right  exist  the 
frequency  of  its  exercise  is  a matter  of  expediency.  Austria- 
Hungary  proposed  that  the  transformation  once  made  should 
last  during  the  continuance  of  the  war,  but  the  Conference  was 
likewise  unable  to  agree  upon  this  question  and  it  was  deferred. 
The  importance  therefore  of  the  convention  is  very  slight ; for 
in  simplest  terms,  disregarding  the  language  of  the  preamble 
and  provisions  of  the  articles,  it  means  simply  that  men-of-war 
are  men-of-war,  and  that  merchant  vessels  as  such  are  not  to 
be  considered  as  men-of-war. 

3.  The  Laying  of  Automatic  Submarine  Contact  Mines^ 

The  Chinese  Government  is  obliged  even  today  to  furnish 
coasting  vessels  with  special  instruments  to  catch  and  destroy 
floating  mines,  which  obstruct  not  only  the  high  seas  but  Chi- 
nese territorial  waters.  Notwithstanding  all  the  precautions 
taken,  a very  considerable  number  of  coasting  vessels,  fishing 
smacks,  junks,  and  sampans,  have  been  sunk  by  contact  with 
these  automatic  submarine  mines.  And  these  vessels  have 
been  swallowed  up  and  so  completely  lost  to  sight  that  details 
of  these  disasters  have  not  reached  the  western  world.  It  is 
estimated  that  from  500  to  600  of  our  subjects  who  followed 
their  peaceful  pursuits  have  thus  met  a cruel  death  on  account 
of  these  agents  of  destruction.^ 

Such  was  the  language  of  a Chinese  delegate  at  The  Hague 
Conference  of  1907  regarding  the  after-effects  of  a war  sup- 
posedly between  Russia  and  Japan. 

* On  a vote  taken  in  the  Committee  of  Examination  nine  States  voted  to 
forbid  transformation  upon  the  high  seas— United  States,  Belgium,  Brazil, 
Great  Britain,  Italy,  Japan,  Norway,  Holland,  Sweden — to  seven  in  favor 
of  it — Germany,  Austria-Hungary,  Argentine,  Chile,  France,  Russia,  Servia. 

* For  a resume  of  the  discussion  in  the  Conference  on  this  difficult 
question  see  the  admirable  reports  of  Professor  George  Streit,  in  La 
Deuxi^me  Conference  Internationale  de  la  Pais,  (1907)  Vol.  Ill,  pp.  397-426, 
455-459;  for  final  proceedings  in  plenary  session,  see  Vol.  I,  pp.  278-282. 

^ Declaration  of  the  Chinese  Delegation,  La  Deuxieme  Conference  Inter- 
nationale de  la  Paix,  1907,  Vol.  Ill,  p.  663. 


SUBMAEINE  CONTACT  MINES 


577 


The  world  was  so  large,  it  is  now  so  very  little ! The  world 
is  so  closely  knit  together  that  a disturbance  in  one  part  is 
sure  to  be  felt  in  the  other,  just  as  a pebble  dropped  in  a 
pool  sends  a ripple  to  either  bank.  The  effect  of  war  cannot, 
therefore,  be  hmited  solely  to  belligerents,  the  neutral  is  in- 
jured in  his  property,  and  as  in  the  war  between  Russia  and 
Japan,  in  his  person.  The  rights  of  neutrals  have  imposed 
duties  upon  belligerents,  and  it  may  be  that  a sense  of  inter- 
national oneness  will  eventually  not  only  limit  warfare  but 
bind  its  members  over  to  keep  the  peace.  As  long  as  warfare 
is  permitted,  however,  its  effects  should  be  confined  as  far  as 
possible  to  the  immediate  belligerents,  and  if  the  effects  of  cer- 
tain means  of  destruction  cannot  be  confined  to  belligerents, 
there  seems  no  reason  why  the  interests  of  two  jarring  members 
of  the  family  of  nations  should  not  yield  to  the  interests  of  all. 

As  regards  the  particular  means  of  destruction  dealt  with  in 
the  present  convention,  it  may  be  said  that  mines  are  not  new; 
that  they  came  into  use  with  gunpowder;  that  they  were  suc- 
cessfully used  at  sea  in  the  American  Civil  War,  by  means  of 
which  harbors  were  defended  and  blockading  ships  attacked 
and  destroyed.  This,  however,  was  a mine  placed  mthin  terri- 
torial waters,  and  there  can  be  no  doubt  that,  as  long  as  war  is 
recognized,  States  may  protect  themselves  within  their  terri- 
torial waters  by  all  means,  provided  only  that  the  means  of 
destruction  intended  for  the  enemy  do  not  break  loose  from 
control  and  endanger  neutral  life  and  property  beyond  the 
limits  of  territorial  jurisdiction.  Therefore,  mines  may  freely 
be  placed  in  ports  and  harbors,  or  in  territorial  waters  gener- 
ally to  be  exploded  by  contact  or  controlled  from  the  shore. 
The  difficulty,  however,  arises  when  belligerents  set  in  motion 
an  agency  whose  effect  is  not  limited  to  its  territorial  waters, 
or  if  in  battle  on  the  high  seas,  the  destructive  power  of  the 
means  employed  survives  the  battle.  It  may  be  said  that  sub- 
marine mines  which  are  floating,  either  anchored  or  drifting, 
and  whose  explosion  is  caused  automatically  by  contact  are 
newcomers  in  modem  warfare,  and  that,  therefore,  there  is  by 
reason  of  their  novelty  difficulty  in  their  regulation.  If,  how- 


578 


THE  HAGUE  PEACE  CONFERENCES 


ever,  we  bear  in  mind  that  the  Law  of  Nations  permits  the 
appropriation  of  contiguous  waters  for  a distance  of  three 
miles  from  low-water  mark,  and  if  we  further  admit,  as  we 
must,  that  the  high  seas  are  not  susceptible  of  appropriation 
but  are  the  highway  alike  for  belligerent  or  neutral,  although 
the  belligerent  is  permitted  for  the  purpose  of  battle  to  control 
a limited  sphere,  we  are  forced  to  the  conclusion  that  the  inter- 
est of  the  belligerent,  being  special  and  temporary,  should  not 
displace  or  control  the  interest  of  the  neutral,  which  is  general 
and  permanent.  The  application  of  these  general  principles  to 
a new  but  concrete  problem  necessarily  and  logically  solves  it. 
As  the  great  Lord  Stowell  said  in  the  case  of  the  Atlanta  (6  C. 
Robinson,  440,  459) : 

If  the  court  took  upon  itself  to  assume  principles  in  them- 
selves novel,  it  might  justly  incur  such  an  imputation;  but  to 
apply  established  principles  to  new  cases,  cannot  surely  be  so 
considered.  All  law  of  circumstances,  leading  to  an  extended 
application  of  principles,  ancient  and  recognized,  by  just  corol- 
laries, may  be  infinite;  but  so  long  as  the  continuity  of  the  orig- 
inal and  established  principles  is  preserved  pure  and  unbroken, 
the  practice  is  not  new,  nor  is  it  justly  chargeable  with  being 
an  innovation  on  the  ancient  law;  when,  in  fact,  the  court  does 
nothing  more  than  apply  old  principles  to  new  circumstances. 

We  are  now  prepared  to  examine  the  various  articles  of  the 
convention  relating  to  the  laying  of  automatic  submarine  con- 
tact mines.  As  in  the  case  of  the  transformation  of  merchant 
ships  into  men-of-war,  the  preamble  of  the  present  convention 
recognizes  the  imperfect  and  tentative  nature  of  the  conven- 
tion, but  commends  its  enforcement  “until  such  time  as  it  is 
found  possible  to  formulate  rules  on  the  subject  which  shall 
insure  to  the  interests  involved  all  the  guarantees  desirable.” 
The  principles,  however,  proclaimed  in  the  preamble  are  correct 
and  deserve  unstinted  praise  and  universal  acceptance.  For 
example,  the  Conference  declares  itself  as  “inspired  by  the 
principle  of  freedom  of  sea  routes,  the  common  highways  of  all 
nations.”  It  concedes  that  the  existing  position  of  affairs 
makes  it  impossible  to  forbid  the  employment  of  automatic 
submarine  contact  mines,  but  considers  it  nevertheless  desir- 
able “to  restrict  and  regulate  their  employment,”  assuredly  a 


SUBMARINE  CONTACT  MINES 


579 


very  commendable  purpose,  “in  order  to  mitigate  the  severity 
of  war  and  to  insure,  as  far  as  possible,  to  peaceful  navigation 
the  security  to  which  it  is  entitled,  despite  the  existence  of 
war.”  It  might  be  said  that  the  impossibility  of  forbidding 
the  employment  of  automatic  submarine  contact  mines  is  not 
so  self-evident  as  the  wisdom  and  necessity  of  their  regulation. 
The  Conference  of  1899  owed  its  existence,  it  would  seem,  to 
the  desire  to  check  armament  and  the  increasing  burden  of 
military  expenditures,  and  had  the  States  represented  been 
willing  to  limit  themselves  to  the  known  means  of  destruction 
this  convention  concerning  mines  would  have  been  unneces- 
sary. Nations  seem,  however,  unwilling  to  fetter  the  inventive 
genius  of  their  people  when  from  its  encouragement  new  and 
destructive  means  of  warfare  are  to  be  expected.  An  exami- 
nation of  the  proceedings  of  the  First  Conference  shows  that 
the  small  States  were  as  unwilling  to  put  up  with  imperfect 
arms  as  the  larger  States  were  unwilling  to  limit  themselves  to 
the  means  actually  known  and  in  use.  Had  they  agreed  to 
leave  matters  in  status  quo  for  a period  of  years,  relative  equal- 
ity or  inequality  would  have  been  maintained.  Had  the 
nations  assembled  in  1907  at  The  Hague  forbidden  the  use  of 
floating  mines  outward  equality  would  have  been  observed. 
Mines  are,  however,  said  to  be  an  efficient  and  comparatively 
inexpensive  means  of  protecting  the  coast,  whether  to  ward 
off  the  enemy,  to  resist  or  raise  a blockade.  For  these  reasons 
Powers  with  large  navies  are  said  not  to  favor  mines,  even  for 
their  coast  defenses,  because  mines  not  only  prevent  free  and 
unrestricted  access  to  the  enemy  coast  but  render  a return  to 
the  home  port  in  stress  of  weather  dangerous.  It  is  stated  by 
a competent  authority.  Admiral  Charles  H.  Stockton  of  the 
United  States  Navy,  that. 

Great  Britain  has  practically  abandoned  the  use  of  sub- 
marine mines  for  the  defense  of  its  ports  and  is  trusting  to  pro- 
tected automobile  torpedoes  of  the  Whitehead  and  other  types 
in  connection  with  submarine  boats  for  the  defense  of  its  sea- 
ports. Hence,  and  in  connection  with  this,  the  fact  that  her 
fleet  both  naval  and  maritime,  is  the  greatest  in  the  world — 


580 


THE  HAGUE  PEACE  CONFERENCES 


never  greater  or  more  efficient  than  now — this  power  represents 
the  extreme  school  against  the  use  of  submarine  mines  exploded 
by  contact.' 

Admitting  this  statement  to  be  correct,  for  the  layman  must 
perforce  accept  the  verdict  of  the  specialist,  it  would  follow 
that  the  prohibition  of  such  mines  might  work  an  inequality, 
because  the  renunciation  would  deprive  the  smaller  States  with 
moderate  navies,  of  the  means  of  resisting  the  powerful  fleets. 
It  is  not  meant,  however,  to  suggest  even  indirectly  that  British 
opposition  to  the  use  of  mines  is  due  to  the  possession  of  a 
matchless  and  overwhelming  fleet,  because  fleets  are  able  to  pick 
up  and  explode  mines  without  great  danger,  although  it  maybe 
at  considerable  delay.  Undoubtedly  Great  Britain  opposed 
for  humanitarian  reasons,  sowing  the  high  seas  with  mines. 
Material  interests  were  not  lacking,  for  British  commerce 
extending  over  the  world  is  most  likely  to  be  injured  by  drifting 
mines.  The  horror  of  a means  of  destruction  is  perhaps  more 
evident  when  opposed  to  our  interests.  Given  the  advantage, 
however,  of  the  use  of  mines,  it  is  at  once  seen  why  the  Second 
Conference  did  not  prohibit  their  use. 

The  first  article,  while  admitting  the  use  of  mines,  seeks 
to  limit  their  destructiveness  to  the  belligerents  and  to  the 
locality  in  which  they  are  placed.  It  also  recognizes  two 
kinds  of  automatic  contact  mines  at  present  in  use,  namely, 
the  unanchored  and  anchored  variety  and  established  a 
principle  which  if  followed  will  protect  neutral  commerce. 
The  article  does  not  deal  with  the  mines  placed  in  territorial 
waters  under  control  from  shore.  It  deals  with  the  unan- 
chored and  anchored  mines  which  explode  automatically 
by  contact.  In  the  first  place,  it  is  forbidden  to  use  un- 
anchored automatic  contact  mines  except  when  so  constructed 
as  to  become  harmless  one  hour  at  most  after  control  over 
them  is  abandoned.  In  the  next  place,  it  is  forbidden  speci- 
fically to  lay  anchored  automatic  contact  mines  which  do 
not  become  harmless  upon  breaking  loose  from  their  moorings. 

' American  Journal  of  International  Law  (1908),  Vol.  II.  p.  279. 


8UBMAEINE  CONTACT  MINES 


581 


And,  finally,  it  is  forbidden  to  use  torpedoes  which  do  not 
become  harmless  when  they  have  missed  their  mark. 

The  British  delegation  proposed  that  unanchored  submarine 
mines  exploded  automatically  by  contact  should  be  forbidden, 
a proposition  supported  by  the  United  States.  The  Confer- 
ence, however,  while  willing  to  prevent  the  use  of  unanchored 
mines  dangerous  to  commerce,  was  unwilling  to  renounce  the 
use  of  such  mines  if  in  reality  controllable.  The  sentiment 
was  so  strongly  in  favor  of  this  view,  championed  by  Italy, 
that  the  British  delegation  yielded  the  point,  provided  only 
that  the  mines  should  lose  their  destructive  force  within  a 
very  short  lapse  of  time  after  the  loss  of  control.  The  period 
of  an  hour  was  eventually  agreed  upon.  In  criticism  of  this 
compromise,  it  maybe  said  that  many  experiments  must  needs 
be  made  and  perhaps  many  a life  sacrificed  before  it  be  ascer- 
tained whether  a particular  form  of  mine  loses  its  destructive- 
ness within  the  prescribed  period.  It  clearly  would  have 
been  better  to  forbid  the  use  of  such  mines  during  a fixed 
period,  for  example,  five  years,  as  proposed  by  Germany,  in 
order  that  a subsequent  conference  might,  in  the  light  of 
experience,  permit  under  proper  restrictions  or  forbid  entirely 
their  use,  in  view  of  the  doubt  and  uncertainty  expressed  at 
the  Conference. 

The  provision  concerning  anchored  automatic  contact  mines 
is  beyond  criticism,  for  it  forbids  their  employment  unless 
they  become  harmless  “as  soon  as  they  have  broken  loose  from 
their  moorings.”  It  may  well  be  that  human  life  will  be 
sacrificed  in  the  interest  of  science,  but  the  presumption  is  in 
favor  of  the  prohibition  as  in  the  matter  of  unanchored  mines 
it  is  against  inhibition. 

The  first  article  therefore  recognizes  a twofold  division  of 
contact  mines  and  regulates  in  general  the  use  to  be  made  of 
each. 

The  second  article  forbids  the  laying  of  contact  mines  off 
the  coast  and  ports  of  the  enemy  with  the  sole  object  of  inter- 
cepting commerce,  an  article  which  in  its  present  form  is  as 
acceptable  as  it  is  reasonable.  It  was,  however,  objected  to 


582 


THE  HAGUE  PEACE  CONFEKENCES 


on  the  ground  that  the  word  “sole”  introduced  a subjective 
element  by  which  the  inhibition  might  be  evaded,  because  to 
violate  the  letter  of  the  article  the  mines  must  be  used  with 
the  sole  object  of  intercepting  commercial  shipping.  If 
placed  for  any  other  reason  the  spirit  would  be  violated  but 
the  letter  would  be  saved  intact.  For  this  reason  Germany 
and  France  considered  the  article  objectionable. 

It  will  be  noted,  that  the  article  although  it  may  refer  to 
does  not  specify  blockade.  As  proposed  by  Great  Britain 
the  “ use  of  floating  contact  mines  to  establish  or  maintain  a 
commercial  blockade  should  be  forbidden.”  Doubt  as  to  the 
effect  of  this  article  upon  the  effectiveness  of  blockade  led  to 
its  present  form  in  which,  however,  the  difficiilty  is  rather 
adjourned  than  met,  because  the  Declaration  of  Paris  of  1856, 
contemplates  effectiveness  of  the  blockade  to  be  produced 
by  vessels.  It  will  be  noted,  also,  that  the  article  refers  to 
the  locality  in  which  the  mines  may  be  placed,  and  it  is  interest- 
ing to  observe  that  four  articles  (2-5)  referring  to  locality  pre- 
pared by  the  Committee  of  Examination  and  proposed  to  the 
commission  find  no  place  in  the  convention.^  Briefly  con- 
sidered these  articles  were  divisible  into  three  groups,  the  first 
group  consisting  of  Articles  2 and  3 regarding  the  defensive  use 
of  mines,  the  second  group  consisting  of  Article  4 regulating  the 
use  of  mines  for  purposes  of  attack,  and  the  third  group  consist- 
ing of  Article  5 permitting  the  use  of  mines  to  belligerents  in  the 
sphere  of  their  immediate  activity.  In  summary  form,  it  was 
forbidden  to  place  anchored  mines  beyond  the  three-mile  limit; 
although  in  the  case  of  bays  the  limit  of  three  miles  was  to 
be  measured  from  a straight  line  drawn  across  the  bay  at 
the  nearest  point  to  the  entrance  where  the  width  of  the  bay 
does  not  exceed  ten  miles.  (Article  2.)  In  the  case  of  fortified 
harbors  and  military  arsenals,  anchored  mines  might  be 
placed  for  a distance  of  ten  miles.  (Article  3.)  As  previously 
stated  these  Articles  2 and  3 of  the  original  project  regulated 
the  use  of  mines  for  defensive  purposes.  The  powers  generally 

' For  full  text  of  project  reported  to  the  Third  Commission,  see  Appen- 
dix, pp.  829-831. 


SUBMARINE  CONTACT  MINES 


583 


were  unwilling  to  limit  themselves  by  treaty  to  such  a use  of 
mines  and  the  articles  in  question  were  stricken  in  commission. 
Article  4,  confining  mines  for  purposes  of  attack  within  the 
same  limits  with  the  exception  of  fortified  harbors  and  state 
arsenals,  met  a like  fate.  The  third  and  concluding  paragraph 
of  this  fourth  article  dealing  with  the  interception  of  neutral 
commerce,  was  saved  from  the  general  wreck  and  appears  in 
separate  form  as  Article  2 of  the  convention.  Article  5 of 
the  original  project  gave  belligerents  the  right  to  use  mines  in 
the  sphere  of  their  immediate  activity,  provided,  however, 
that  the  mines  so  employed  were  so  constructed  as  to  become 
harmless  in  two  hours  at  most  after  abandonment.  This 
article  was  stricken  in  its  entirety,  so  that  belligerents  may, 
it  would  appear,  use  mines  anywhere  upon  the  high  seas. 
Referring  to  Article  2 of  the  convention  forbidding  the  employ- 
ment  of  mines  off  shore  for  the  sole  purpose  of  intercepting 
commerce,  it  is  thus  seen  that  the  attempt  to  confine  the  use 
of  mines  within  permitted  and  determined  localities  was  not 
crowned  with  success. 

Articles  3 and  4 of  the  convention  refer  respectively  to 
the  precautions  to  be  taken  by  belligerents  in  the  matter  of 
anchored  and  then  of  neutrals  in  the  matter  of  all  mines. 
For  example,  every  possible  precaution  must  be  taken  by 
belligerents  for  the  security  of  peaceful  shipping,  and  belliger- 
ents specifically  undertake  to  do  their  utmost  to  render  these 
mines  harmless  within  a limited  time.  Should  the  mines  cease 
to  be  under  surveillance,  the  belligerents  undertake  to  notify 
the  danger  zones  as  soon  as  military  exigencies  permit.  It 
will  be  noted,  that  every  presumption  is  in  favor  of  belligerent 
right,  for,  although  belligerents  bind  themselves  to  render  the 
mines  harmless  within  a limited  time,  they  do  not  need  to 
watch  over  them.  Nor  do  they  need  to  notify  the  danger 
zones  at  once  but  as  soon  as  military  exigencies  permit.  If 
we  recall  the  anecdote  of  Nelson  turning  his  blind  eye  to  a 
signal  to  withdraw,  we  can  hardly  expect  naval  officers  in  the 
exultation  of  victory  or  the  throes  of  defeat  to  think  of  the 
neutral.  Neutral  powers  are  assimilated  to  belligerents  in  that 


584 


THE  HAGUE  PEACE  CONFERENCES 


they  must  observe  the  same  rules  and  take  the  same  precautions 
in  regard  to  mines  off  their  coasts  as  are  imposed  upon  bellig- 
erents. (Article  4.)  That  is,  they  must  inform  shipowners  in 
advance  where  the  mines  have  been  laid,  which  notice  must  be 
communicated  at  once  to  the  Governments  through  diplomatic 
channels.  It  is  reasonable  to  provide  in  the  case  of  neutrals  that 
the  notice  be  in  advance,  whereas  it  might  be  equally  unreason- 
able to  cause  belligerents  to  notify  shipowners  in  advance, 
because  by  so  doing  the  purpose  of  the  mine  might  be  defeated. 

Article  5 binds  the  contracting  powers  to  do  their  utmost  at 
the  close  of  the  war  to  remove  the  mines  laid  by  them.  If, 
however,  mines  have  been  laid  by  one  or  other  of  the  belliger- 
ents off  the  enemy’s  coast  it  seems  excessive  to  require  that 
each  belligerent  should  remove  the  mines  placed  by  it.  The 
purpose  of  the  obligation  requires  that  the  mines  be  removed, 
and  upon  the  notification  of  the  exact  situation  of  the  mines, 
each  power  should  proceed  without  delay  to  remove  them 
from  its  territorial  waters.  And  such  is  the  requirement  of 
the  article. 

It  may  happen,  however,  that  Contracting  Powers,  while 
addicted  to  mines,  do  not  possess  “the  perfected  mines  of  the 
pattern  contemplated  in  the  present  convention.”  In  this 
case  the  provisions  of  Articles  1 and  3 are  inapplicable.  How- 
ever, in  order  that  the  convention  may  apply  generally,  the 
Contracting  Powers  “ undertake  to  convert  the  materiel  of  their 
mines  as  soon  as  possible,  so  as  to  bring  it  into  conformity  with 
the  foregoing  requirements.”  (Article  6.)  Article  7 restricts  the 
convention  to  Contracting  Powers,  and  Article  11  limits  the 
duration  of  the  convention  to  seven  years,  with  the  further 
proviso  in  Article  12  that  the  question  of  the  employment  of 
automatic  contact  mines  be  opened  six  months  before  the 
expiration  of  this  period,  unless  the  question  of  the  use  of  auto- 
matic contact  mines  has  been  already  reconsidered  and  settled 
at  an  earlier  date  by  the  Third  Peace  Conference. 

Such  is  in  brief  the  convention  for  the  laying  of  submarine 
automatic  contact  mines.  It  is  good  as  far  as  it  goes,  but 
unstinted  praise  would  be  as  improper  as  unqualified  criticism. 


SUBMAKINE  CONTACT  MINES 


585 


To  permit  the  use  of  mines  upon  the  high  seas  may  lead  to  the 
injury  of  neutral  commerce,  which  the  convention  aims  to  pre- 
vent, for  it  does  not  appear  that  unanchored  mines  will 
become  harmless  within  so  short  a period  of  time  after  being 
placed  as  not  to  interfere  with  neutral  commerce.  Ordinary 
reason,  as  well  as  military  necessity,  keeps  neutrals  beyond  the 
I sphere  of  naval  action,  but  mines  scattered  by  either  bellig- 
erent may  survive  their  immediate  purpose  to  the  detriment  of 
neutral  life  and  property.  The  pathetic  appeal  of  China 
I should  not  fall  on  deaf  ears,  and  the  convention  cannot  be 
looked  upon  other  than  as  a compromise  limited  to  seven  years 
, within  which  period  we  hope  the  world  may  see  no  war  to  test 
the  convention.  The  note  of  warning  sounded  by  Sir  Ernest 
Satow  on  behalf  of  the  British  delegation  should  not  fail  to 
awaken  an  echo  in  the  lover  of  his  kind; 

Having  voted  for  the  Mines  Convention  which  the  Con- 
ference has  just  accepted,  the  British  delegation  desires  to 
declare  that  it  cannot  regard  this  arrangement  as  furnishing  a 
final  solution  of  the  question,  but  only  as  marking  a stage  in 
international  legislation  on  the  subject.  It  does  not  consider 
that  adequate  account  has  been  taken  in  the  convention  of  the 
rights  of  neutrals  to  protection,  or  of  humanitarian  sentiments 
which  cannot  be  neglected.  The  British  delegation  has  done 
its  best  to  bring  the  Conference  to  share  its  views,  but  its  efforts 
in  this  directions  have  remained  without  result.  The  high  seas, 
gentlemen,  form  a great  international  highway.  If  in  the  pres- 
I ent  state  of  international  laws  and  customs  belligerents  are 
permitted  to  fight  out  their  quarrels  upon  the  high  seas,  it  is 
none  the  less  incumbent  upon  them  to  do  nothing  which  might, 
long  after  their  departure  from  a particular  place,  render  this 
highway  dangerous  for  neutrals  who  are  equally  entitled  to  use 
it.  We  declare  without  hesitation  that  the  right  of  the  neutral 
to  security  of  navigation  on  the  high  seas  ought  to  come  before 
the  transitory  right  of  the  belligerent  to  employ  these  seas  as 
the  scene  of  the  operation  of  war. 

Nevertheless,  the  convention  as  adopted  imposes  upon  the 
belligerent  no  restriction  as  to  the  placing  of  anchored  mines, 
which  consequently  may  be  laid  wherever  the  belligerent 
chooses,  in  his  own  waters  for  self-defense,  in  the  waters  of  the 
enemy  as  a means  of  attack,  or  finally  on  the  high  seas,  so  that 
neutral  navigation  will  inevitably  run  great  risk  in  time  of  naval 
I war  and  may  be  exposed  to  many  a disaster.  We  have  already 

5 on  several  occasions  insisted  upon  the  danger  of  a situation  of 


586 


THE  HAGUE  PEACE  CONEEKENCES 


this  kind.  We  have  endeavored  to  show  what  would  be  the 
effect  produced  by  the  loss  of  a great  liner  belonging  to  a neutral 
power.  We  did  not  fail  to  bring  forward  every  argument  in 
favor  of  limiting  the  field  of  action  for  these  mines,  while  we 
called  very  special  attention  to  the  advantages  which  the  civ- 
ilized world  would  gain  from  this  restriction,  since  it  would  be 
equivalent  to  diminishing  to  a certain  extent  the  causes  of  war- 
like conflicts.  It  appeared  to  us  that  by  acceptance  of  the 
proposal  made  by  us  at  the  beginning  of  the  discussion,  dangers 
would  have  been  obviated  which  in  every  maritime  war  of  the 
future  will  threaten  to  disturb  friendly  relations  between  neu- 
trals and  belligerents.  But,  since  the  Conference  has  not  shared 
our  views,  it  remains  for  us  to  declare  in  the  most  formal  manner 
that  these  dangers  exist,  and  that  the  certainty  that  they  will 
make  themselves  felt  in  the  future  is  due  to  the  incomplete 
character  of  the  present  convention. 

As  this  convention,  in  our  opinion,  constitutes  only  a partial 
and  inadequate  solution  of  the  problem,  it  cannot,  as  has 
already  been  pointed  out,  be  regarded  as  a complete  exposition 
of  international  law  on  this  subject.  Accordingly,  it  will  not 
be  permissible  to  presume  the  legitimacy  of  an  action  for  the 
mere  reason  that  this  convention  has  not  prohibited  it.  This 
is  a principle  which  we  desired  to  affirm,  and  which  it  will  be 
impossible  for  any  State  to  ignore,  whatever  its  power.  ^ 

Baron  Marschall  von  Bieberstein  replied  to  Sir  Ernest  as 
follows : 

That  a belligerent  who  lays  mines  assumes  a very  heavy 
responsibility  towards  neutrals  and  towards  peaceful  shipping 
is  a point  on  which  we  are  all  agreed.  No  one  will  resort  to 
this  instrument  of  warfare  unless  for  military  reasons  of  an 
absolutely  urgent  character.  But  military  acts  are  not  solely 
governed  by  stipulations  of  international  law.  There  are  other 
facts.  Conscience,  good  sense,  and  the  sense  of  duty  imposed 
by  principles  of  humanity  will  be  the  surest  guides  for  the  con- 
duct of  sailors,  and  will  constitute  the  most  effective  guarantee 
against  abuses.  The  officers  of  the  German  navy,  I loudly 
proclaim  it  (je  le  dis  a haute  voix),  will  always  fulfill  in  the 
strictest  fashion  the  duties  which  emanate  from  the  unwritten 
law  of  humanity  and  civilization.  I have  no  need  to  tell  you 
that  I entirely  recognize  the  importance  of  the  codification  of 
rules  to  be  followed  in  war.  But  it  would  be  a great  mistake 
to  issue  rules  the  strict  observation  of  which  might  be  rendered 
impossible  by  the  law  of  facts.  It  is  of  the  first  importance 

^ Courrier  de  la  Conference,  No.  100:  translation  as  in  the  Times  of  tenth 
October,  1907;  quoted  from  Westlake,  International  Law,  Vol.  II,  p.  324. 


SUBMARINE  CONTACT  MINES 


587 


that  the  international  maritime  law  which  we  desire  to  create 
should  only  contain  clauses  the  execution  of  which  is  possible 
from  a military  point  of  view — is  possible  even  in  exceptional 
circumstances.  Otherwise  the  respect  for  law  would  be  lessened 
and  its  authority  undermined.  It  would  also  seem  to  us  to  be 
preferable  to  maintain  at  present  a certain  reserve,  in  the  ex- 
pectation that  seven  years  hence  it  will  be  easier  to  find  a solu- 
tion which  will  be  acceptable  to  the  whole  world.  As  to  the 
humanitarian  sentiments  of  which  the  British  delegate  has 
spoken,  I cannot  admit  that  there  is  any  country  in  the  world 
which  is  superior  to  my  country  or  my  Government  in  the  senti- 
ment of  humanity.^ 

4.  Bombardment  op  Undefended  Ports  by  Naval  Forces^ 

Among  the  six  voeux  to  be  found  in  the  Final  Act  of  the  First 
Hague  Peace  Conference  is  the  following  wish ; 

The  Conference  expresses  the  wish  that  the  proposal  to  settle 
the  question  of  the  bombardment  of  ports,  towns  and  villages 
by  a naval  force  may  be  referred  to  a sulDsequent  conference 
for  consideration. 

This  recommendation  did  not  fall  upon  deaf  ears,  and  among 
the  most  admirable  results  of  the  Second  Peace  Conference  is 
the  small  but  simple  convention  forbidding  the  bombardment 
of  undefended  ports,  towns,  villages,  dwellings,  or  buildings. 
This  is  not  the  appropriate  place  to  discuss  the  relation  between 
a recommendation  of  one  conference  and  the  work  of  a succeed- 
ing one,  but  it  is  pleasing  to  note  that  the  recommendation  of 
a conference  is  not  a burial ; that  it  calls  attention  of  the  powers 
to  the  subject-matter  and  thus  paves  the  way  for  a substantial 
agreement  at  the  conference  to  which  the  recommendation  is 
referred.  If  the  recommendations  of  the  Second  Conference 
fare  as  well  as  the  recommendation  of  the  First  Conference 
regarding  bombardment,  the  world  will  be  the  gainer  and  the 
cause  of  international  justice,  and  therefore  of  peace,  will  be 
much  advanced  by  the  Third  Conference,  which  is  gradually 
becoming  the  center  of  hope  and  expectation. 

* Times  of  tenth  October,  1907;  quoted  by  Westlake,  International  Law, 
Vol.  II,  p.  325. 

* For  a r^sum^  of  the  discussions  in  the  Conference  on  this  subject  see 
the  Report  of  Professor  George  Streit  in  La  D4uxidme  Conference  Inter- 
nationale de  la  Paix  (1907)  Vol.  I,  pp.  111-118. 


588 


THE  HAGUE  PEACE  CONFEKENCES 


The  purpose  of  war  is  to  bring  the  enemy  to  terms,  and  all 
means  calculated  to  attain  this  desirable  end  are  legitimate, 
provided  they  do  not  cause  needless  suffering  and  are  not  in 
their  nature  more  brutal  than  war  must  always  be.  The 
noncombatant  is  regarded  merely  as  a prospective  enemy, 
to  be  looked  upon  with  suspicion,  but  not  to  be  subjected  to 
the  pains  and  penalties  of  the  soldier  in  the  field.  Public 
property  may  indeed  be  appropriated;  private  property  may 
be  destroyed  for  a military  purpose,  may  be  requisitioned,  or 
may  be  subjected  to  contribution,  but  it  is  no  longer  at  the 
mercy  of  an  enemy  or  invader.  A fortress  may  be  assaulted, 
but  the  garrison  is  no  longer  put  to  the  sword  for  a refusal  to 
surrender.  A fortified  town  may  be  taken  by  storm,  but  the 
noncombatant  and  his  property  must  be  spared,  as  far  as 
possible.  Article  25  of  the  regulations  respecting  the  laws 
and  customs  of  war  on  land  adopted  at  the  First  Hague 
Conference  provides  that  the  “attack  or  bombardment  of 
towns,  villages,  habitations,  or  buildings  which  are  not  de- 
fended is  prohibited.”  The  enemy,  his  means  of  attack  and 
defense,  may  be  reduced  by  force.  The  defenseless,  whether 
they  be  noncombatants  or  merely  property,  are  no  longer 
exposed  to  attack  or  destruction.  It  is  true  that  this  article 
and  its  salutary  prohibition  applies  to  land  warfare,  and  the 
attempt  to  extend  it  to  naval  warfare  failed  for  the  moment 
because  Great  Britain  was  unwilling  to  extend  the  discussion 
beyond  the  immediate  program,  namely,  the  codification  of 
the  laws  and  customs  of  warfare  on  land.  Hence  the  refer- 
ence to  a subsequent  conference.  There  is,  however,  no  reason 
why  a different  rule  should  prevail  in  naval  warfare,  and  that 
nonoffending  and  defenseless  towns,  villages,  or  habitations 
should  be  destroyed  merely  because  the  assailant  is  able  to  do 
so.  Devastation  in  land  warfare  has  not  produced  peace. 
It  has,  on  the  contrary,  prolonged  war  and  created  an  ani- 
mosity which  survives  the  war  in  which  it  occurred.  It  is 
not  only  brutal  but  useless  as  well.  As  long  ago  as  1694 
Evelyn  said: 

Lord  Berkeley  burnt  Dieppe  and  Havre  in  revenge  for  the 
defeat  at  Brest.  This  manner  of  destructive  war  was  begun 


BOMBARDMENT  BY  NAVAL  FORCES 


589 


by  the  French,  and  is  exceedingly  ruinous,  especially  falling 
on  the  poorer  people,  and  does  not  seem  to  tend  to  make  a more 
speedy  end  of  the  war,  but  rather  to  exasperate  and  incite  to 
revenged 

Devastation  of  the  coast,  whether  it  be  produced  by  land 
forces  or  by  the  enemy  at  sea,  is  still  devastation,  andthereisno 
reason  to  beheve  that  the  effect  upon  the  enemy  will  be  differ- 
ent merely  because  the  devastation  is  the  result  of  bombard- 
ment rather  than  the  result  of  fire  and  sword  by  land. 

When  the  Prince  de  Joinville  recommended  in  1844,  in  case 
of  war,  the  devastation  of  the  great  commercial  towns  of 
England,  the  Duke  of  Wellington  wrote: 

What  but  the  inordinate  desire  of  popularity  could  have  in- 
duced a man  in  his  station  to  write  and  publish  such  a pro- 
duction, an  invitation  and  provocation  to  war,  to  be  carried  on 
in  a manner  such  as  has  been  disclaimed  by  the  civilized  portions 
of  mankind,® 

But,  rejected  by  the  Duke  of  Welhngton,  the  opinion  of  the 
Prince  de  Joinville  was  recently  espoused  by  Admiral  Aube,  a 
French  naval  oflScer,  in  an  article  in  the  Revue  des  Deux 
Mondes,®  where  he  argued  that  the  purpose  of  war  is  to  inflict 
the  greatest  possible  damage  to  the  enemy  and  that — 

As  wealth  is  the  sinews  of  war,  all  that  strikes  at  the  wealth  of 
the  enemy — b,  fortiori  all  that  strikes  at  the  source  of  wealth — 
becomes  not  only  legitimate  but  obligatory.  It  must  therefore 
be  expected  that  the  fleets,  mistresses  of  the  sea,  will  turn  their 
powers  of  attack  and  destruction,  instead  of  letting  the  enemy 
escape  from  blows,  against  all  the  cities  of  the  coast,  fortified 
or  not,  peaceful  or  warlike,  to  burn  them,  to  ruin  them,  and  at 
least  to  ransom  them  without  mercy.  This  was  the  former  prac- 
tice; it  ceased;  it  will  prevail  again.  Strasbourg  and  Peronne 
assure  it,* 

This  relapse  into  barbarism  was  like  a bolt  in  a clear  sky, 
because  there  were  very  few  examples  of  the  bombardments 

* Hall,  International  Law,  5th  ed.,  533,  note  2. 

® Raikes,  Correspondence,  p.  367,  quoted  from  the  Annuaire  de  I’Institut 
du  Droit  International,  Vol.  XV,  p.  149. 

® La  guerre  maritimes  et  les  ports  miiitaires  de  la  France,  Vol.  L,  pp.  314- 
346  (1882). 

^Loc.  cit.,  p.  331. 


590 


THE  HAGUE  PEACE  CONFERENCES 


of  undefended  coast  line  and  these  precedents  were  univer- 
sally discredited.  The  only  recent  example  of  the  bombard- 
ment of  a commercial  town  as  an  act  of  devastation  was  the 
case  of  Valparaiso,  attacked  in  the  year  1866  by  the  Spanish 
fleet,  but,  to  quote  the  measured  language  of  the  late  Mr.  Hall, 
“the  act  gave  rise  to  universal  indignation  at  the  time,  and 
has  never  been  defended. 

The  article  of  Admiral  Aube  gave  rise  to  great  discussion, 
and  it  may  be  said  that  the  proposition  to  subject  undefended 
coast  towns  to  destruction  met  with  little  or  no  favor.  The 
Admiral’s  suggestion  that  they  should  purchase  their  immunity 
by  ransom  met  a like  fate,  but  a very  lively  and  by  no  means 
unprofitable  discussion  has  arisen  over  the  question  whether 
undefended  ports,  towns,  and  villages  might  be  subject  to 
requisitions  and  contributions. 

There  is  no  recent  writer  on  international  law  who  enjoys 
greater  and  more  merited  authority  than  the  late  Mr.  W.  E. 
Hall,  and  for  this  reason  he  is  selected  to  voice  the  view  of 
publicists. 

Two  questions  are  suggested  by  the  above  indications  of 
opinion  and  of  probable  action  on  the  part  of  naval  powers. 
First,  the  restricted  one,  whether  contributions  and  requisitions 
can  be  legitimately  levied  by  a naval  force  under  threat  of  bom- 
bardment, without  occupation  being  effected  by  a force  of  de- 
barkation; and,  secondly,  the  far  larger  one,  whether  the  bom- 
bardment and  devastation  of  undefended  towns,  and  the  accom- 
panying slaughter  of  unarmed  populations,  is  a proper  means 
of  carrying  on  war.  The  latter  question  will  find  its  answer 
elsewhere. 

Requisitions  may  be  quickly  disposed  of.  They  are  not  likely 
to  be  made  except  under  conditions  in  which  a demand  for  the 
article  requisitioned  would  be  open  to  little,  if  any,  objection. 
A vessel  of  war  or  a squadron  can  not  be  sent  to  sea  in  an  efficient 
state  without  having  on  board  a plentiful  supply  of  stores  iden- 
tical with,  or  analogous  to,  those  which  form  the  usual  and 
proper  subjects  of  requisition  by  a military  force.  It  is  only 
in  exceptional  and  unforeseen  circumstances  that  a naval  force 

^ Hall,  International  Law,  5th  ed.,  556,  note  2.  For  an  elaborate  state- 
ment of  this  unjustifiable  and  unjustified  bombardment,  see  Moore’s  Inter- 
national Law  Digest,  Vol.  VII,  §1170. 


bombardment  by  naval  forces 


591 


can  find  itself  in  need  of  food  or  of  clothing;  when  it  is  in  want 
of  these,  or  of  coal,  or  of  other  articles  of  necessity,  it  can  un- 
questionably demand  to  be  supplied  wherever  it  is  in  a position 
to  seize;  it  would  not  be  tempted  to  make  the  requisition  except 
in  case  of  real  need;  and  generally  the  time  required  for  the  col- 
lection and  delivery  of  large  quantities  of  bulky  articles,  and 
the  mode  in  which  delivery  would  be  effected,  must  be  such  that 
if  the  operation  were  completed  without  being  interrupted,  suffi- 
cient evidence  would  be  given  that  the  requistioning  force  was 
practically  in  possession  of  the  place.  In  such  circumstance 
it  would  be  almost  pedantry  to  deny  a right  of  facilitating  the 
enforcement  of  the  requisition  by  bombardment  or  other  means 
of  intimidation.! 

Contributions  stand  upon  a different  footing.  They  do  not 
find  their  justification  in  the  necessity  of  maintaining  a force  in 
an  efficient  state;  they  must  show  it  either  in  their  intrinsic 
reasonableness,  or  in  the  identity  of  the  conditions,  under  which 
they  would  be  levied,  with  those  which  exist  when  contributions 
are  levied  during  war  upon  land.  Such  identity  does  not  exist. 
In  the  case  of  hostilities  upon  land  a belligerent  is  in  military 
occupation  of  the  place  subjected  to  contribution;  he  is  in  it 
and  remains  in  it  long  enough  to  deprive  the  inhabitants  of  the 
equivalent  of  the  contribution  demanded,  by  plundering  the 
town,  or  by  seizing  and  carrying  off  the  money  and  the  valuables 
which  he  finds  within  it;  he  accepts  a composition  for  property 
which  his  hand  already  grasps.  This  is  a totally  different  matter 
from  demanding  a sum  of  money  or  negotiable  promises  to  pay, 
under  penalty  of  destruction,  from  a place  in  which  he  is  not, 
which  he  probably  dare  not  enter,  which  he  can  not  hold  even 
temporarily,  and  where  consequently  he  is  unable  to  seize  and 
carry  away.  Ability  to  seize  and  the  further  ability,  which  is 
also  consequent  upon  actual  presence  in  a place,  to  take  host- 
ages for  securing  payment  are  indissolubly  mixed  up  with  the 
right  to  levy  contributions,  because  they  render  needless  the 
use  of  violent  means  of  enforcement.  If  devastation  and  the 
slaughter  of  noncombatants  had  formed  the  sanction  under 
which  contributions  are  exacted,  contributions  would  long  since 
have  disappeared  from  warfare  upon  land.  It  is  not  denied 
that  contributions  may  be  rightly  levied  by  a maritime  force; 
but  in  order  to  be  rightly  levied  they  must  be  levied  under  con- 
ditions identical  with  those  under  which  they  are  levied  by  a 

’ If  articles  are  requisitioned  which  are  not  needed  for  the  efficiency 
of  the  force,  such  as  articles  of  luxury,  or  articles  which  will  not  be  used 
by  it,  but  will  be  turned  into  money,  a disguised  contribution  is  of  course 
levied,  and  the  propriety  or  impropriety  of  the  demand  must  be  judged 
by  the  test  of  the  propriety  or  the  impropriety  of  contributions. 


592 


THE  HAGUE  PEACE  CONFERENCES 


military  force.  An  undefended  town  may  fairly  be  summoned 
by  a vessel  or  a squadron  to  pay  a contribution;  if  it  refuses  a 
force  must  be  landed;  if  it  still  refuses,  like  measures  may  be 
taken  with  those  which  are  taken  by  armies  in  the  field.  The 
enemy  must  run  the  chance  of  being  interrupted,  precisely  as 
he  runs  his  chance  when  he  endeavors  to  levy  contributions 
by  means  of  flying  columns.  A levy  of  money  made  in  any 
other  manner  than  this  is  not  properly  a contribution  at  all. 
It  is  a ransom  from  destruction.  If  it  is  permissible,  it  is  per- 
missible because  there  is  a right  to  devastate,  and  because  ran- 
som is  a mitigation  of  that  right.  ‘ 

The  Institute  of  International  Law,  as  was  to  be  expected, 
has  devoted  great  care  and  attention  to  the  question  raised  by 
Admiral  Aube,  and  in  the  session  at  Venice  in  1896  prepared 
and  adopted  a series  of  articles  dealing  with  the  question, 
which  may  be  taken  as  representing  the  enlightened  opinion  of 
publicists  as  a whole. ^ Important  in  themselves,  the  rules  have 
an  additional  claim  to  our  attention  because  they  facihtated 
the  work  of  the  Second  Conference,  and  the  close  similarity 
between  the  convention  as  actually  adopted  and  the  rules  of 
the  Institute  will  become  apparent  by  comparison  of  the  respec- 
tive texts.  Before  setting  forth  the  rules  in  extenso  it  should 
be  said  that  the  manual  of  the  Institute  referred  to  is  the 
manual  of  the  laws  of  war  adopted  at  the  Oxford  session  of  the 
Institute  in  1881,  and  for  sake  of  convenience  the  articles 
referred  to  are  printed  in  the  footnote. 


Article  1. 

There  is  no  difference  between  the  rules  of  the  law  of  war  as 
to  bombardment  by  military  forces  on  land  and  that  by  naval 
forces. 


Article  2. 

Consequently,  there  apply  to  the  latter  the  general  principles 
enunciated  in  Article  32  of  the  manual  of  the  Institute — -i.  e., 
it  is  forbidden  (o)  to  destroy  public  or  private  property,  if  such 
destruction  is  not  commanded  by  the  imperious  necessity  of 
war;  (6)  to  attack  and  bombard  localities  which  are  not  defended. 

^ International  Law  (5th  ed.),  pp.  434-436. 

^Annuaire,  vol.  xv,  pp.  313  et  seq. 


BOMBARDMENT  BY  NAVAL  FORCES 


593 


Article  3. 

The  rules  enunciated  in  Articles  33  and  34^  of  the  manual  are 
equally  applicable  to  naval  bombardments. 

Article  4. 

In  virtue  of  the  foregoing  principles,  the  bombardment  by 
a naval  force  of  an  open  town — i.  e.,  one  not  defended  by  forti- 
fications or  other  means  of  attack  or  of  resistance  for  immediate 
defense,  or  by  detached  forts  situated  in  proximity  to  it,  for 
example,  at  the  maximum  distance  of  from  4 to  10  kilometers 
is  inadmissible,  except  in  the  following  cases; 

1.  In  order  to  obtain  by  means  of  requisitions  or  of  contribu- 
tions what  is  necessary  for  the  fleet. 

Nevertheless,  such  requisitions  and  contributions  must  re- 
main within  the  bounds  prescribed  by  Articles  56  and  58^  of 
the  manual  of  the  Institute. 

2.  In  order  to  destroy  dockyards,  military  establishments, 
depots  of  munitions  of  war,  or  vessels  of  war  found  in  a port. 

Moreover,  an  open  town  which  is  defended  against  the  en- 
trance of  troops  or  of  disembarked  marines  may  be  bombarded 
in  order  to  protect  the  landing  of  soldiers  and  of  marines  if  the 
open  town  attempts  to  prevent  it,  and  as  an  auxiliary  measure 
of  war  in  order  to  facilitate  an  assault  made  by  the  troops  and 
disembarked  marines,  if  the  town  defends  itself. 

* Art.  33.  The  commander  of  the  attacking  troops  ought,  except  in  case 
of  assault,  before  beginning  a bombardment,  to  do  all  he  can  to  advise 
the  local  authorities. 

Art.  34.  In  case  of  bombardment  all  needful  measures  shall  be  taken  to 
spare,  if  it  be  possible  to  do  so,  buildings  devoted  to  religion  and  charity,  to 
the  arts  and  sciences,  hospitals  and  depots  of  sick  and  woimded.  This  on 
condition,  however,  that  such  places  be  not  made  use  of,  directly  or  indirectly 
for  purposes  of  defense. 

It  is  the  duty  of  the  besieged  to  designate  such  buildings  by  suitable 
marks  or  signs,  indicated  in  advance  to  the  besieger. 

^Art.  56.  Impositions  in  kind  (requisitions),  levied  upon  communes,  or 
the  residents  of  invaded  districts,  should  bear  direct  relation  to  the  generally 
recognized  necessities  of  war,  and  should  be  in  proportion  to  the  resources 
of  the  district.  Requisitions  can  only  be  made,  or  levied,  with  the  author- 
ity of  the  commanding  oflBcer  of  the  occupied  district. 

Art.  58.  The  invadercannotlevyextraordinary  contributions  of  money, 
save  as  an  equivalent  for  fines  or  imposts  not  paid  or  for  payments  not 
made  in  kind.  Contributions  in  money  can  only  be  imposed  by  the  order, 
and  upon  the  responsibility,  of  the  general  in  chief,  or  that  of  the  superior  civil 
authority  established  in  the  occupied  territory;  and  then,  as  nearly  as 
possible,  in  accordance  with  the  rule  of  apportionment  and  assessment  of 
existing  imposts. 


594 


THE  HAGUE  PEACE  CONFERENCES 


There  are  specially  forbidden  bombardments,  whose  sole 
object  is  to  exact  a ransom  {Brandschatz) , and,  with  greater 
reason,  those  destined  only  to  induce  the  submission  of  the 
country  by  the  destruction,  without  other  motive,  of  peace- 
able inhabitants  or  their  property. 

Article  5. 

An  open  town  may  not  be  exposed  to  bombardment  by  the 
sole  fact — 

1.  That  it  is  the  capital  of  a State  or  the  seat  of  government 
(but,  naturally,  these  circumstances  give  it  no  guaranty  against 
bombardment). 

2.  That  it  is  actually  occupied  by  troops,  or  that  it  is  ordi- 
narily garrisoned  by  troops  of  various  arms,  destined  to  rejoin 
the  army  in  time  of  war. 

In  the  year  1900  the  Naval  War  Code,  prepared  by  Captain 
(now  Admiral)  Charles  H.  Stockton,  was  promulgated  for  the 
use  of  the  navy,  and  Article  4 of  this  code  is  as  follows : 

The  bombardment,  by  a naval  force,  of  unfortified  and  unde- 
fended towns,  villages,  or  buildings  is  forbidden,  except  when 
such  bombardment  is  incidental  to  the  destruction  of  military 
or  naval  establishments,  public  depots  of  munitions  of  war, 
or  vessels  of  war  in  ports,  or  unless  reasonable  requisitions  for 
provisions  and  supplies  essential,  at  the  time,  to  such  naval 
vessel  or  vessels  are  forcibly  withheld,  in  which  case  due  notice 
of  bombardment  shall  be  given. 

The  bombardment  of  unfortified  and  undefended  towns  and 
places  for  the  nonpayment  of  ransom  is  forbidden. 

We  are  now  prepared  to  examine  the  convention  regulating 
bombardment  by  naval  forces  in  the  light  of  the  opinion  of  a 
distinguished  publicist,  Mr.  Hall;  in  the  light  of  the  rules  and 
regulations  of  the  most  distinguished  body  of  international 
jurists,  the  Institute  of  International  Law;  and  in  the  light  of 
the  practice  of  the  United  States. 

Article  1 of  the  convention  provides  that  “the  bombard- 
ment by  naval  forces  of  undefended  ports,  towns,  villages, 
dwellings,  or  buildings  is  forbidden.”  This  provision  is  simply 
declaratory  of  theory  and  practice.  The  concluding  para- 
graph of  Article  1 is  new  and  provides  that  “a  place  can  not 
be  bombarded  solely  because  automatic  submarine  contact 


BOMBAEDMBNT  BY  NAVAL  FORCES 


595 


mines  are  anchored  off  the  harbor.”  The  paragraph  last 
quoted  simply  means  that  the  presence  of  automatic  sub- 
marine contact  mines  is  not  of  itself  sufficient  to  justify  bom- 
bardment of  an  otherwise  defenseless  port  or  town.  The 
mines  may  undoubtedly  be  destroyed,  but  for  their  destruc- 
tion the  Conference  did  not  regard  a bombardment  of  the  other- 
wise undefended  town  as  necessary  or  proper.  It  should  be 
said,  however,  that  Great  Britain,  France,  Germany,  and  Japan 
entered  their  reservations  against  this  rule. 

Article  2 is  as  follows: 

Military  works,  military  or  naval  establishments,  depots  of 
arms  or  war  materiel,  workshops  or  plant  which  could  be  utilized 
for  the  needs  of  the  hostile  fleet  or  army,  and  the  ships  of  war 
in  the  harbor,  are  not,  however,  included  in  this  prohibition. 
The  commander  of  a naval  force  may  destroy  them  with  artil- 
lery, after  a summons  followed  by  a reasonable  time  of  waiting 
if  all  other  means  are  impossible,  and  when  the  local  authorities 
have  not  themselves  destroyed  them  within  the  time  fixed. 

He  incurs  no  responsibility  for  any  unavoidable  damage  which 
may  be  caused  by  a bombardment  under  such  circumstances. 

If  for  military  reasons  immediate  action  is  necessary,  and  no 
delay  can  be  allowed  the  enemy,  it  is  understood  that  the  pro- 
hibition to  bombard  the  undefended  town  holds  good,  as  in  the 
case  given  in  Paragraph  1,  and  that  the  commander  shall  take 
all  due  measures  in  order  that  the  town  may  suffer  as  little  harm 
as  possible. 

An  examination  of  this  important  article  shows  that  it  is 
declaratory  of  enlightened  theory  as  well  as  practice;  for  a 
town  used  as  a military  or  naval  basis  can  not  reasonably 
claim  the  immunity  which  arises  solely  by  reason  of  a defense- 
less condition.  This  provision  is  in  accord  with  the  matured 
view  of  Mr.  Hall,  who  says: 

Of  course  nothing  which  is  above  said  has  reference  to  the 
destruction  of  property  capable  of  being  used  by  an  enemy  in 
his  war.  No  objection  can  be  taken  to  the  bombardment  of 
shipbuilding  yards  in  which  vessels  of  war  or  cruisers  can  be 
built.  Of  course,  also,  a belligerent  is  not  responsible  for  devas- 
tation caused  by,  say,  the  accidental  spreading  of  a fire  to  a 
town  from  vessels  in  harbor  burnt  because  of  their  possible  use 
as  transports,  or  from  burning  naval  or  military  stores.^ 

* Hall,  International  Law,  5th  ed.,  p.  536,  note  3. 


596 


THE  HAGUE  PEACE  CONFERENCES 


It  is  also  in  accord  with  Article  4,  Section  2 (previously 
quoted),  of  the  rules  of  the  Institute  of  International  Law. 

The  last  paragraph  of  the  second  article  of  the  convention 
permits  immediate  bombardment  for  the  destruction  of  the 
noxious  material,  but  in  such  a case  “the  prohibition  to  bom- 
bard the  undefended  town  holds  good,”  and  the  commander  is 
bound  to  take  “all  due  measures  in  order  that  the  towns 
may  suffer  as  little  harm  as  possible.”  The  reason  for  this 
seeming  exception  from  immunity  provided  by  Article  1 is 
due  to  the  fact  that  the  local  authorities  may  prevent  the 
intervention  of  the  enemy  by  the  destruction  of  the  noxious 
material.  If,  however,  they  refuse,  it  seems  only  proper  to 
allow  the  enemy  to  use  the  force  and  the  means  necessary  to 
destroy  the  articles  in  question.  If  damage  occurs  the  local 
authorities  would  seem  to  be  to  blame,  for  they  might  easily 
have  destroyed  the  material  without  subjecting  the  commu- 
nity to  the  possibility  of  injury.  In  any  case  the  convention 
insists  that  the  town  itself  shall  suffer  as  little  harm  as  is  con- 
sistent with  the  destruction  of  the  property. 

Article  3 is  likewise  declaratory  of  existing  law  and  practice, 
for  it  permits  bombardment  for  “requisitions  for  provisions 
or  supplies  in  question.”  Lest,  however,  the  demand  for 
requisitions  might  amount  to  a ransom  or  might  permit  devas- 
tation, it  is  provided  that  the  requisitions  shall  be  in  propor- 
tion to  the  resources  of  the  place.  The  entire  article,  unobjec- 
tionable in  theory  as  it  is  in  practice  follows : 

After  due  notice  has  been  given,  the  bombardment  of  unde- 
fended ports,  towns,  villages,  dwellings,  or  buildings  may  be 
commenced,  if  the  local  authorities,  after  a formal  summons 
has  been  made  to  them,  decline  to  comply  with  requisitions  for 
provisions  or  supplies  necessary  for  the  immediate  use  of  the 
naval  force  before  the  place  in  question. 

These  requisitions  shall  be  in  proportion  to  the  resources  of 
the  place.  They  shall  only  be  demanded  in  the  name  of  the 
commander  of  the  said  naval  force,  and  they  shall,  as  far  as  possi- 
ble, be  paid  for  in  cash;  if  not,  they  shall  be  evidenced  by  re- 
ceipts. 

It  will  be  noted  that  the  late  Mr.  Hall  allowed,  with  cer- 


BOMBAKDMENT  BY  NAVAL  FORCES 


597 


tain  reservations,  bombardment  to  enforce  contributions,  and 
Article  4,  section  1,  previously  quoted,  of  the  rules  of  the 
Institute  of  International  Law  likewise  sanctioned  such  bom- 
bardment. 

Article  4 of  the  convention  denied  the  right  in  the  follow- 
ing expressed  terms : 

Undefended  ports,  towns,  villages,  dwellings,  or  buildings 
may  not  be  bombarded  on  account  of  failure  to  pay  money 
contributions. 

The  remaining  articles  (5,  6 and  7)  extend  to  naval  bom- 
bardment the  principles  and  restrictions  already  found  in  the 
laws  and  customs  of  war  on  land  for  bombardment  (Articles 
25,  28,  revised  convention).  The  exact  text  of  the  concluding 
articles  of  the  convention  concerning  bombardment  by  naval 
forces  follows,  and  needs  neither  explanation  nor  comment : 

Article  5. 

In  bombardments  by  naval  forces  all  the  necessary  measures 
must  be  taken  by  the  commander  to  spare  as  far  as  possible 
sacred  edifices,  buildings  used  for  artistic,  scientific,  or  chari- 
table purposes,  historic  monuments,  hospitals,  and  places  where 
the  sick  or  wounded  are  collected,  on  the  understanding  that 
they  are  not  used  at  the  same  time  for  military  purposes. 

It  is  the  duty  of  the  inhabitants  to  indicate  such  monuments, 
edifices,  or  places  by  visible  signs,  which  shall  consist  of  large, 
stiff  rectangular  panels  divided  diagonally  into  two  colored 
triangular  portions,  the  upper  portion  black,  the  lower  portion 
white. 

Article  6. 

If  the  military  situation  permits,  the  commander  of  the  at- 
tacking naval  force,  before  commencing  the  bombardment, 
must  do  his  utmost  to  warn  the  authorities. 

Article  7. 

A town  or  place,  even  when  taken  by  storm,  may  not  be 
pillaged. 

The  convention,  therefore,  is  as  humanitarian  as  it  is  wise, 
and  is  in  strict  conformity  with  the  practice  and  custom  of 
enlightened  nations.  The  only  provision  of  this  admirable 


598 


THE  HAGUE  PEACE  CONFERENCES 


little  convention  likely  to  produce  criticism  or  justify  objec- 
tion is  the  concluding  paragraph  of  Article  1,  prohibiting 
bombardment  solely  because  automatic  submarine  contact 
mines  are  anchored  off  the  harbor.  How  serious  this  may 
be  only  the  future  will  show,  but  the  convention  as  a whole  is 
declaratory  of  the  practice  of  enlightened  nations  and  is  in 
accord  with  the  views  of  the  most  recent  and  authoritative 
publicists.  By  removing  doubt  and  ambiguity,  by  making 
that  certain  which  seemed  to  be  uncertain  or  questionable, 
the  convention  amply  justified  itself,  and  it  can  only  be  re- 
garded as  a genuine  and  further  step  in  the  march  of  uni- 
versal progress.* 


‘ For  details  see  La  D4iixiSme  Conference  Internationale  de  la  Paix,  1907, 
vol.  iii.,  pp.  341-363,  538-550;  vol.  i,  pp.  89-90. 


CHAPTER  XIII 


THE  ADAPTATION  TO  NAVAL  WARFARE  OF  THE 
PRINCIPLES  OF  THE  GENEVA  CONVENTION; 
RESTRICTIONS  ON  THE  EXERCISE  OF  THE 
RIGHT  OF  CAPTURE  IN  NAVAL  WARFARE; 
RIGHTS  AND  DUTIES  OF  NEUTRAL  POWERS  IN 
NAVAL  WARFARE 

1.  Adaptation  to  Naval  Warfare  of  the  Principles  of 
THE  Geneva  Convention  ^ 

The  Geneva  Convention  of  1864,  due  to  the  inspiration  of 
an  enthusiast,  is  wholly  humanitarian,  with  the  fundamental 
purpose  of  withdrawing  from  the  hazards  of  war  its  victims 
and  protecting  the  personnel  and  property  used  in  their  service. 
For  example,  ambulances  and  military  hospitals  are  neuter  and 
as  such  protected  and  respected  by  belligerents  so  long  as 
containing  sick  and  wounded.  (Article  1.)  Personnel  em- 
ployed in  hospitals  and  ambulances  share  the  benefit  of 
neutrahty.  (Article  2.)  The  inhabitants  of  the  country 
bringing  help  to  the  wounded  are  to  be  respected  and  remain 
free,  and  inhabitants  entertaining  wounded  men  in  their 
houses  shall  be  exempt  from  quartering  of  troops  as  well 
as  from  contributions  of  war.  (Article  5.)  Wounded  or  sick 
soldiers  shall  be  entertained  and  taken  care  of  irrespective 
of  nationality.  (Article  6.)  A distinctive  and  uniform  flag, 
a red  cross  on  a white  ground,  is  adopted  for  hospitals,  ambu- 
lances and  evacuations  and  is  always  to  be  accompanied  by  the 
national  flag;  an  arm  badge,  hkewise  consisting  of  the  red 
cross  on  white  ground,  is  to  be  worn  by  individuals  neutralized. 
From  this  brief  summary  it  will  be  seen  that  the  personnel  and 

'For  the  proceedings  in  the  First  Conference  see  La  Conference  Inter- 
nationale de  la  Paix,  1899,  part  I,  pp.  18-30;  part  III,  pp.  3-18. 

For  the  proceedings  in  1907  see  La  Deuxieme  Conference  Internationale 
de  la  Paix,  1907,  Acteset  Documents,  vol.  i,  pp.  66-84;  vol.  iii,  pp.  293-340, 
553-568.  5 

For  the  revision  in  1906  of  the  Geneva  Convention  of  1864,  see  M.  Louis 
Renault’s  Report  Actes  de  la  Conference  de  Geneve  (1906)  pp.  243-268. 

599 


600 


THE  HAGUE  PEACE  CONFERENCES 


property  used  in  tending  the  sick  are  recognized  as  neutral, 
in  the  sense  that  they  take  no  part  in  the  war  and  are  therefore 
protected  by  each  belligerent  in  their  work  of  mercy.  But 
the  importance  of  the  convention  lies  really  in  the  idea  that 
sick  and  wounded  unable  to  take  part  in  battle  should  not  be 
left  to  perish  by  the  wayside,  but  should  be  cared  for  and 
restored  to  health,  or  at  least  treated  like  men  in  their  last 
moments  of  agony.  The  convention,  therefore,  notwithstand- 
ing its  faults  marked  a great  advance,  and  from  the  year  1864 
must  be  dated  the  humanitarian  treatment  of  the  sick  and 
wounded;  for  the  nations  realized  as  never  before  a duty 
resting  upon  them  to  prepare  by  convention  in  time  of  peace 
for  the  protection  of  the  soldiers  who  in  the  service  of  their 
country  were  injured  and  unable  to  care  for  themselves. 
The  special  agreement  between  general  and  general,  limited 
for  the  campaign  or  the  duration  of  the  war,  had  proved 
ineffective  because  the  duty  was  really  international.  The 
mere  fact  that  the  Convention  of  1864  was  incomplete  cannot 
in  any  wise  militate  against  its  claim  to  our  gratitude.  It  is 
rather  incumbent  upon  its  critics  to  perfect  the  work  so  nobly 
begun. 

It  will  be  noted,  that  the  convention  is  limited  to  the  care 
of  the  sick  and  wounded  in  the  field  and  that  sailors  were  there- 
fore excluded  from  its  blessings.  The  naval  war  of  1866 
between  Italy  and  Austria  and  the  mortality  caused  by  care- 
lessness or  lack  of  care  at  the  battle  of  Lissa  called  atten- 
tion to  the  necessity  of  extending  the  naval  provisions  of  the 
Geneva  Convention  of  1864.  Upon  the  suggestion  of  Italy, 
and  upon  the  invitation  of  Switzerland,  a second  conference 
met  at  Geneva  in  1868  and  drew  up  a series  of  provisions 
known  as  the  Additional  Articles . These  consist  in  the  first  place 
of  additions  to  the  Geneva  Convention  of  1864  concerning 
land  warfare  (Articles  1-5),  and  in  the  second  place  of  a series 
of  provisions  intended  to  provide  care  for  the  sick  and  wounded 
in  naval  warfare  and  to  furnish  the  necessary  machinery  for 
this  humanitarian  purpose.  The  additional  articles  concern- 
ingland  warfare  provided  in  brief:  that  the  personnel  em- 
ployed in  hospitals  and  ambulances  shall  continue  to  tend  the 


ADAPTATION  OF  GENEVA  CONVENTION  TO  NAVAL  WARFARE  601 


sick  and  wounded  even  after  occupation  by  the  enemy.  (Ar- 
ticle 1.)  Arrangements  are  to  be  made  to  assure  the  enjoy- 
ment of  salary  to  the  personnel  falling  into  the  hands  of  the 
enemy.  (Article  2.)  The  term  ambulance  as  used  in  the 
convention  applies  to  field  hospitals  and  other  temporary 
establishments  following  troops  on  a field  of  battle  to  receive 
sick  and  wounded  (Article  3);  with  the  exception  of  officers 
whose  detention  might  be  important  to  the  fate  of  arms, 
wounded  falling  into  the  hands  of  the  enemy  shall  be  sent 
back  to  their  country  after  cure,  or,  if  possible,  sooner  on  con- 
dition of  not  bearing  arms  during  continuance  of  war.  (Article 
5.)  It  will  be  seen  that  the  additions  to  land  warfare  attempt 
to  supply  an  interpretation  of  some  of  the  articles  of  1864 
and  define  the  term  ambulance;  but  they  otherwise  add  little 
to  the  convention  and  their  nonratification  cannot  be  said 
to  have  affected  injuriously  the  convention  they  were  intended 
to  improve.  It  is  unfortunately  true  that  the  provisions 
relating  to  maritime  warfare  were  not  adopted  by  the  powers. 
They  were  of  great  value,  however,  as  a model  for  future  codi- 
fication and  as  such  they  were  used  in  1899  at  the  First  Hague 
Conference.  The  articles  were  not  perfect,  they  provoked 
much  criticism  during  the  thirty  years  elapsing  between  their 
framing  and  their  adoption  in  modified  form  at  The  Hague. 
They  represented,  however,  the  enlightened  sentiment  of 
the  world  that  the  sick  and  wounded  should  be  humanely 
treated  irrespective  of  nationality,  and  that  the  instrumentali- 
ties for  such  purposes  should  be  respected  and  protected  by 
the  belligerents.  This  idea  was  not  and  could  not  be  lost,  and 
it  was  eminently  proper  that  the  articles  served  as  the  basis  of 
discussion  at  The  Hague,  just  as  the  Declaration  of  Brussels, 
unaccepted  by  the  powers,  served  as  the  basis  of  codification 
of  the  laws  and  customs  of  war  at  the  same  conference. 

The  result  of  the  labors  of  the  First  Conference  in  this 
matter  was  the  “convention  for  the  adaptation  to  maritime 
warfare  of  the  principles  of  the  Geneva  Convention  of  August 
22,  1864,”  the  first  authoritative  regulation  of  the  treatment 
of  the  sick  and  wounded  in  naval  warfare.  The  convention 
was  satisfactory,  and  yet,  as  is  always  the  case,  susceptible 


602 


THE  HAGUE  PEACE  CONFERENCES 


of  improvement.  It  will  be  noted  that  although  the  conven- 
tion is  based  upon  the  Additional  Articles  of  1868,  still  it  is 
officially  connected  with  the  Geneva  Convention  of  1864 
in  that  the  Red  Cross  regulations  are  applied  to  maritime 
warfare.  As  the  Geneva  Convention  of  1864  was  revised,  one 
might  say  remade,  by  an  international  conference  held  at 
Geneva  in  1906,  pursuant  to  a recommendation  of  the  First 
Conference,  it  seems  natural  that  the  Second  Conference 
should  take  advantage  of  the  revision  in  order  to  extend, 
as  far  as  possible  and  in  appropriate  form,  the  principles  of 
the  revised  Geneva  convention  to  future  maritime  war. 
We  thus  have  two  conventions,  approximately  of  the  same 
date  based  upon  the  same  experience,  representing  the  most 
recent  and  enlightened  thought  of  the  world  upon  the  treat- 
ment to  be  accorded  to  the  sick  and  wounded  in  war  whether 
it  be  on  land  or  upon  the  sea.  And  it  thus  happens  that  the 
treatment  of  each  class  is  regulated  by  two  conventions; 
those  negotiated  at  Geneva  in  1864  and  1906,  for  the  protec- 
tion of  the  sick  and  wounded  in  land  warfare,  and  the  two 
Conventions  of  1899  and  1907  negotiated  at  The  Hague  for 
the  protection  of  the  sick  and  wounded  in  naval  warfare. 

The  main  provisions  of  the  revised  convention  will  be  passed 
briefly  in  review.  In  the  first  place,  it  will  be  seen  that  the 
Convention  of  1899  comprises  14  articles,  whereas  the  revised 
convention  contains  26;  but  the  convention  of  1899  remains 
the  framework  and  was  only  slightly  revised  and  modified  so 
as  to  bring  it  into  as  close  conformity  with  the  Geneva  Con- 
vention of  1906  as  the  requirements  of  naval  warfare  will 
permit.  The  subdivisions  of  1899  and  the  general  order  of 
the  articles,  therefore,  remain  relatively  unchanged.  The  Con- 
vention of  1899  and  therefore  its  successor  of  1907  is  susceptible 
of  a threefold  division:  first,  the  series  of  articles  devoted  to 
vessels  employed  in  hospital  service  (Articles  1-6;  1-9) ; second, 
the  personnel  (Articles  7 ; 10) ; third,  the  wounded,  sick  and 
shipwrecked  (Articles  8 and  9;  11  to  17).  Vessels  employed 
in  the  hospital  service  constitute  three  different  categories: 
first,  they  may  be  hospital  ships  belonging  to  the  belligerent 


ADAPTATION  OF  GENEVA  CONVENTION  TO  NAVAL  WARFARE  603 


State;  second,  hospital  ships  of  a belligerent  subject  or  citizen; 
third,  hospital  ships  belonging  to  neutral  subjects  or  citizens. 
However  much  these  classes  may  differ,  they  have  a common 
purpose,  and  therefore  the  rules  and  regulations  concerning 
them  should  be  of  the  same  general  nature.  They  should  be 
given  the  full  liberty  required  by  their  charitable  mission. 
They  should  not,  however,  be  so  free  from  control  as  to  interfere 
in  any  way  with  naval  operations.  Otherwise  their  presence 
becomes  a nuisance  to  the  belligerent  and  they  will  not  be 
tolerated  in  the  sphere  of  conflict.  A distinction  lies  in  the 
difference  of  mission;  for  to  adopt  the  language  of  the  pacificist, 
the  mission  of  the  belligerent  ship  is  to  furnish  the  victim,  the 
duty  of  the  hospital  ship  is  to  restore  the  victim  to  health. 
The  duty  of  each  being  thus  distinct  and  according  to  the  law 
equally  legitimate,  neither  should  infringe  upon  the  rights  of 
the  other,  and  each  should  be  allowed  the  freedom  of  action 
necessary  to  accomplish  its  purpose. 

The  three  classes  of  hospital  ships  are  permitted  in  the 
neighborhood  of  naval  operations,  but,  in  order  that  a vessel 
should  enjoy  this  privilege,  its  character  should  be  clearly 
determined  to  the  satisfaction  of  the  belligerents,  otherwise 
the  vessel  would  be  unable  to  perform  its  mission.  The  hospi- 
tal ship  belonging  to  the  belligerent  is  a public  vessel  and  com- 
missioned as  such,  but  two  formalities  are  requisite  in  order 
that  its  character  be  fully  recognized  and  that  it  be  given  the 
rights  and  privileges  appertaining  to  its  character.  The 
name  of  the  vessel  should  be  communicated  to  the  enemy  in 
order  that  the  enemy  may  know  the  character  of  the  vessel. 
If  it  is  in  the  hospital  service,  its  name  should  be  communi- 
cated to  the  enemy  at  the  outbreak  of  the  war;  if  it  is  equipped 
for  and  added  to  the  service  during  the  war,  this  fact  should  be 
communicated  to  the  enemy  at  the  earliest  possible  moment, 
certainly  before  the  vessel  claims  the  privilege  belonging  to  it 
in  its  hospital  character.  The  character  of  the  vessel  should 
likewise  be  clearly  known  to  neutrals  as  well  as  belligerents, 
because,  although  a public  vessel,  it  is  not  a man-of-war.  It 
is  therefore  entitled  in  neutral  ports  to  the  privileges  of  a 


604 


THE  HAGUE  PEACE  CONFEEENCES 


public  vessel,  and  it  should  not  be  subjected  to  the  treatment 
of  a man-of-war  in  regard  to  sojourn  in  a neutral  port. 

The  second  class  of  vessels,  namely,  the  ship  belonging  to  the 
belligerent  subjects  or  citizens,  should  conform  to  the  require- 
ments of  the  public  vessel  if  it  is  to  enjoy  the  like  privileges. 
The  vessel  must  possess  a guarantee  of  its  character,  and  the 
best  evidence  of  this  nature  is  undoubtedly  an  official  commis- 
sion from  the  belligerent  State  to  the  vessel.  The  character 
thus  being  estabhshed  in  a form  and  manner  acceptable  to  the 
enemy,  the  name  of  the  vessel  should  be  communicated  at  the 
outbreak  of  hostilities  before  the  vessel  claims  the  privileges 
essential  to  its  mission.  The  commission  does  not  make  it  a 
public  much  less  a war  vessel.  Therefore  it  may  enter  freely 
and  remain  in  the  neutral  ports.  (Article  2.)  These  articles 
are  retained  from  the  Convention  of  1899  without  modification. 

In  the  matter  of  hospital  ships  belonging  to  neutral  subjects 
or  citizens,  the  formalities  required  should  be  the  same  or 
greater.  For  example,  the  character  of  the  vessel  as  a hospital 
ship  should  be  made  known  to  the  belligerent  at  the  outbreak  of 
the  war  if  possible,  but  in  any  case  before  the  use  of  the  vessel 
for  a charitable  purpose.  The  fact,  however,  that  the  vessel 
belongs  neither  to  a belligerent  State  nor  its  subject  may  well 
suggest  certain  additional  requirements;  for,  in  the  case  of  a 
belligerent  public  or  private  vessel  the  question  of  nationality 
does  not  arise,  nor  does  the  question  of  submission  to  one  or  the 
other  belligerent  present  itself,  because  the  character  of  the 
vessel  is  ascertained  and  its  nationality  unchanged.  The 
commission  of  the  belligerent  is  a sufficient  guarantee  both  of 
the  nature  of  the  vessel  and  the  purpose  to  which  it  is  to  be 
put.  Therefore,  the  Convention  of  1907  following  Article  11 
of  the  revised  Geneva  convention  of  1906^  provides  that  such 


* A recognized  society  of  a neutral  State  can  only  lend  the  services  of  its 
sanitary  personnel  and  formations  to  a belligerent  with  the  prior  consent  of 
its  own  government  and  the  authorization  of  such  belligerent.  The  bellig- 
erent who  has  accepted  such  assistance  is  required  to  notify  the  enemy 
before  making  any  use  thereof. — Geneva  Convention  of  July  6, 1906,  Article 
II. 


ADAPTATION  OF  GENEVA  CONVENTION  TO  NAVAL  WARFARE  605 


vessel  be  placed  “under  the  control  of  one  of  the  belligerents, 
with  the  previous  consent  of  their  own  government  and  with 
the  authorization  of  the  belligerent  himself.”  If  these  condi- 
tions are  complied  with,  and  if  the  vessels  render  aid  and  assist- 
ance to  the  wounded,  sick  and  shipwrecked  of  the  belligerent 
irrespective  of  nationality,  the  vessels  in  question  are  exempt 
from  capture  during  the  course  of  hostilities.  Compliance  with 
the  requirements  would  not  alone  exempt  the  vessel  from  cap- 
ture, for  the  requirements  are  intended  for  a specific  purpose, 
namely,  aid  and  assistance  to  the  victims  of  naval  warfare. 

It  must  not  be  forgotten,  however,  that  the  privilege  of  the 
hospital  ships  is  subordinated  to  the  rights  of  the  belliger- 
ents, and  the  pri  vilege  guaranteed  to  the  Red  Cross  vessel  is 
conditioned  not  only  upon  the  equal  treatment  of  sick  and 
wounded,  but  upon  the  fact  that  the  vessel  does  not  interfere 
with  naval  operations.  To  summarize  briefly,  the  govern- 
ments bind  themselves  not  to  employ  the  vessels  for  a military 
purpose;  the  vessels  must  not  interfere  in  any  way  with  the 
movements  of  the  combatants,  and  during  and  after  battle  the 
vessels  act  at  their  own  risk  and  peril;  the  belligerent  possesses 
the  right  of  visit  and  control;  they  may  refuse  their  assistance, 
order  them  to  withdraw,  direct  a particular  course,  place  on 
board  a commissioner  and  even  detain  them  if  the  gravity  of 
the  circumstances  require  it,  and,  to  insure  compliance  with 
the  instructions  of  the  belligerent,  the  orders  given  shall  be 
entered  upon  the  log  book  of  the  vessels.  (Article  4.) 

It  is  essential  to  the  enjoyment  of  the  privilege  not  merely 
that  the  vessel  be  commissioned  and  therefore  have  a right  to 
its  character,  but  that  the  nature  of  the  vessel  appear  clearly 
from  a distance;  otherwise  the  mission  could  be  performed 
with  great  difficulty,  and  belligerents,  would  be  unlikely  to 
accord  to  vessels  plying  within  the  sphere  of  operations  the 
privileges  to  which  they  are  officially  entitled.  Therefore 
Article  5 of  the  Convention  of  1899,  slightly  revised  in  1907, 
regulates  the  distinctive  signs  of  the  vessels  in  the  following 
manner : 


606 


THE  HAGUE  PEACE  CONFERENCES 


Military  hospital  ships  shall  be  distinguished  by  being  painted 
white  outside  with  a horizontal  band  of  green  about  a meter  and 
a half  in  breadth. 

The  ships  mentioned  in  Articles  2 and  3 shall  be  dis- 
tinguished by  being  painted  white  outside  with  a horizontal 
band  of  red  about  a meter  and  a half  in  breadth. 

The  boats  of  the  ships  above  mentioned,  as  also  small  craft 
which  may  be  used  for  hospital  work,  shall  be  distinguished  by 
similar  painting. 

All  hospital  ships  shall  make  themselves  known  by  hoisting 
with  their  national  flag,  the  white  flag  with  a red  cross  provided 
by  the  Geneva  Convention,  and  further,  if  they  belong  to  a 
neutral  State,  by  flying  at  the  mainmast  the  national  flag  of  the 
belligerent  under  whose  control  they  are  placed. 

Hospital  ships  which,  in  the  terms  of  Article  IV,  are  detained 
by  the  enemy,  must  haul  down  the  national  flag  of  the  belligerent 
to  whom  they  belong. 

The  ships  and  boats  above  mentioned  which  wish  to  ensure 
by  night  the  freedom  from  interference  to  which  they  are 
entitled,  must,  subject  to  the  assent  of  the  belligerent  they  are 
accompanying,  take  the  necessary  precautions  to  render  their 
special  painting  sufficiently  plain.  (Article  5.) 

It  will  be  noted,  that  the  revised  Convention  of  1907  requires 
in  addition  to  the  national  flag  and  the  Red  Cross  emblem, 
the  ensign  of  the  belligerent  under  whose  control  they  are 
placed.  This  additional  requirement  is  borrowed  from  Article 
21^  of  the  Geneva  convention  of  1906  and  seems  to  cling  to 
the  letter  of  the  convention  rather  than  its  spirit;  for  sanitary 
formations  are  necessarily  within  the  control  of  one  or  other  of 
the  belligerents  and  may  properly  fly  the  belligerent  flag,  but 
the  connection  of  the  hospital  ship  is  not  so  intimate,  and  there 
seems  no  reason  in  the  nature  of  things  why  this  provision 
should  be  retained  and  grafted  upon  the  present  convention. 
The  fact,  however,  that  Article  3 of  the  convention  places  the 
hospital  ship  under  belligerent  control  justifies  the  provision 


^ The  distinctive  flag  of  the  convention  can  only  be  displayed  with  the 
consent  of  the  mihtary  authorities  over  sanitary  formations  and  establish- 
ments whose  protection  it  secures.  It  shall  be  accompanied  by  the  national 
flag  of  the  belligerent  to  whose  service  the  formation  or  establishment  is 
attached. — Geneva  Convention  of  July  6,  1906,  Article  21. 


ADAPTATION  OF  GENEVA  CONVENTION  TO  NAVAL  WARFARE  607 


although  the  circumstances  of  the  case  do  not  require  it.  This 
is,  however,  a small  matter,  and  a flag  more  or  less  is  not  likely 
to  interfere  with  the  mission  of  a hospital  ship. 

Articles  6,  7 and  8 of  the  revised  convention  are  new  and 
regulate  details  in  the  following  manner:  the  distinctive 
emblems  can  only  be  used  in  peace  or  war  for  the  protection 
of  vessels  devoted  to  the  hospital  service  (Article  6) . ^ Infirma- 
ries, that  is  to  say,  hospital  wards  of  the  ship,  are  to  be 
respected  in  boarding  a ship.^  The  protection,  however,  to 
hospital  ships  and  wards  is  lost  if  used  to  injure  the  enemy, ^ a 
superfluous  provision  requiring  no  comment,  a criticism 
equally  applying  to  the  concluding  paragraph  of  Article  8, 
which  states  that  the  arms  borne  by  the  personnel  of  the  vessels 
and  used  to  maintain  order,  and  for  the  defense  of  wounded 
and  sick,  as  well  as  the  presence  of  wireless  telegraph  instru- 
ments, do  not  forfeit  the  right  to  protection.^ 

^ The  emblem  of  the  red  cross  on  a white  groimd  and  the  words  Red 
Cross  or  Geneva  Cross  can  only  be  used,  whether  in  time  of  peace  or  war, 
to  protect  or  designate  sanitary  formations  and  establishments,  the  per- 
sonnel and  materiel  protected  by  the  convention. — Geneva  Convention  of 
July  6,  1906,  Article  23. 

“ Based  on  Articles  6 and  15  of  1906. 

Mobile  sanitary  formations  (i.e.,  those  which  are  intended  to  accom- 
pany armies  in  the  field)  and  the  fixed  estabhshments  belonging  to  the 
sanitary  service  shall  be  protected  and  respected  by  belligerents.— Geneva 
Convention  of  July  6,  1906,  Article  6. 

Buildings  and  materiel  pertaining  to  field  establishments  shall  remain 
subject  to  the  laws  of  war,  but  cannot  be  diverted  from  their  use  so  long  as 
theyarenecessaryforthesickandwoimded.  Commandersof  troopsengaged 
in  operations,  however,  may  use  them,  in  case  of  important  military  neces- 
sity, if,  before  such  use,  the  sick  and  wounded  found  in  them  have  been 
provided  for.  Ibid.,  Article  15. 

^ The  protection  due  to  sanitary  formations  and  establishments  ceases 
if  they  are  used  to  commit  acts  injurious  to  the  enemy.  Ibid.,  Article?. 

*■  A sanitary  formation  or  establishment  shall  not  be  deprived  of  the 
protection  accorded  by  Article  6 by  the  fact  that: 

1.  The  personnel  of  a formation  or  establishment  is  armed  and  uses  its 
arms  in  self-defense  or  in  defense  of  its  sick  and  wounded. 

2.  In  the  absence  of  armed  hospital  attendants,  the  formation  is 
guarded  by  an  armed  detachment  or  by  sentinels  regularly  established. 

3.  Arms  or  carriages  taken  from  the  woimded  and  not  yet  turned  over 
to  the  proper  authorities,  are  found  in  the  formation  or  established. 

Ibid.,  Article  8,  Convention  of  July  6,  1903. 


608 


THE  HAGUE  PEACE  CONFERENCES 


So  far  only  hospital  ships  have  been  considered  which  bear 
evidence  of  an  official  character,  but  it  may  be  that  neutral 
merchant  ships,  yachts,  or  boats  may  be  within  the  sphere  of 
hostile  action,  and  that  belligerents  may  apply  to  them  to  take 
on  board  and  care  for  their  wounded  and  sick.  The  purpose 
of  the  convention  would  fail,  if  these  vessels  were  not  per- 
mitted to  take  on  board  the  sick  and  wounded.  The  character 
of  the  vessel  may,  however,  be  dispensed  with  for  the  essence 
of  the  convention  is  that  a vessel  be  present,  able  and  willing 
to  care  for  the  sick  and  wounded.  Therefore,  the  moment 
that  the  vessel,  whether  summoned  by  the  belligerent  or  of 
its  own  accord  actually  takes  on  board  the  wounded,  sick  or 
shipwrecked,  it  becomes  entitled  to  special  protection  and 
certain  immunities.  In  the  performance  of  its  mission,  the 
vessel  should  be  exempt  from  capture,  but  in  the  absence  of  a 
special  exemption  or  promise  the  mission  should  have  no 
retroactive  effect  upon  the  vessel.  In  other  words,  it  should 
affect  neither  one  nor  the  other  by  its  charitable  act.  If  it 
had  previously  rendered  itself  liable  to  capture  or  confiscation 
for  unneutral  conduct,  it  is  still  so  liable.  The  immunity 
therefore  applies  to  the  present  and  future  conduct  of  the 
vessel,  but  is  wholly  disconnected  with  its  past. 

It  is  seen,  therefore,  that  the  convention  recognizes  the  right 
of  the  sick,  wounded  and  shipwrecked  to  be  cared  for,  in  that 
certain  instrumentalities,  namely,  hospital  vessels,  whether 
belonging  to  the  belligerent  State  or  its  citizens  or  subjects 
or  owned  by  neutral  persons  are  permitted  to  gather  up  and 
care  for  the  imfortunates  of  war,  provided  that  the  vessels 
possess  an  official  character,  distinctive  marks,  and  devote 
themselves  impartially  to  the  performance  of  their  mission. 
In  the  interest  of  the  sick  and  wounded,  the  official  character 
is  waived  in  order  that  merchant  ships,  yachts,  or  boats  may 
render  assistance. 

In  the  next  place,  the  convention  declares  that  the  religious, 
medical  and  hospital  staff  of  a captured  vessel  is  inviolable 
and  cannot  be  made  prisoners  of  war ; that  on  leaving  the  vessel 
the  specified  classes  may  carry  with  them  their  instruments  and 


ADAPTATION  OF  GENEVA  CONVENTION  TO  NAVAL  WARFARE  609 


private  property,  but  may  be  obliged  to  remain  and  perform 
their  accustomed  services  until  they  can  be  spared.  As  these 
officials  render  their  services  without  respect  for  nationality, 
it  follows  that  they  are  entitled  to  their  allowances  and  pay, 
and  the  convention  therefore  requires  that  the  belligerent 
captor  must  guarantee  to  them  the  allowances  and  pay  to 
which  such  persons  are  entitled  in  their  own  service.  (Article 
10.)‘ 

The  third  and  final  general  division  of  the  convention  deals 
specifically  with  the  sick  and  wounded  and  shipwrecked. 
(Articles  8-10;  11-17.)  The  first  article  of  this  division  states 
and  guarantees  the  rights  of  this  unfortunate  class  in  a single 
sentence : 

Sailors  and  soldiers  on  board,  when  sick  or  wounded,  as  well  as 
other  persons  officially  attached  to  fleets  or  armies,  whatever 
their  nationality,  shall  be  respected  and  tended  by  the  captors. 

While  it  cannot  be  said  that  this  article  is  the  most  important 
provision  of  the  convention,  still  it  is  the  pivot  about  which  the 
others  turn  because  the  very  purpose  and  intent  of  the  conven- 
tion is  that  the  sick,  wounded  and  shipwrecked  shall  be  cared 
for  irrespective  of  nationality,  and  the  machinery  of  the  pre- 
vious articles  is  created  solely  to  render  aid  and  assistance  to 
them. 

What  is  to  be  the  status  of  the  sick,  wounded  and  ship- 
wrecked? For  if  refuge  upon  a hospital  ship  deprives  them  of 
their  enemy  character  it  cannot  be  expected  that  belligerents 
will  tolerate  the  presence  of  hospital  ships  within  the  sphere 
of  action.  To  do  so  would  mean  a renunciation  of  the  right 
of  capture,  and  while  a belligerent  has  no  more  use  for  a cripple 
than  he  has  for  a broken  sword  or  exploded  gun,  he  draws  a 
distinction  between  mere  injury  and  permanent  incapacity. 
Therefore  Article  12,  which  is  new  and  incorporates  Capt. 
Mahan’s  rejected  amendements  of  1899,  stipulates  that: 

^ While  they  remain  in  his  power,  the  enemy  will  secm-e  to  the  personnel 
mentioned  in  Article  9 the  same  pay  and  allowances  to  which  persons  of  the 
same  grade  in  his  own  army  are  entitled. — Geneva  Convention  of  July  6, 
1906,  Article  13. 


610 


THE  HAGUE  PEACE  CONFEKENCES 


Any  warship  belonging  to  a belligerent  may  demand  that  sick, 
wounded,  or  shipwrecked  men  on  board  military  hospital  ships, 
hospital  ships  belonging  to  relief  societies  or  to  private  indivi- 
duals, merchant  ships,  yachts,  or  boats,  whatever  the  national- 
ity of  these  vessels,  should  be  handed  over. 

This  provision  is  reasonable  from  whatever  standpoint  it  be 
considered,  and  an  attempt  to  deny  belligerents  rights  neces- 
sarily incident  to  war  can  only  result  in  a disregard  of  the  con- 
vention, a violation  of  its  express  terms,  or  a denunciation  of 
it  by  the  belligerent.  It  is  not  without  interest  to  recall  an 
incident  covered  by  this  article  in  the  short  and  decisive  action 
between  the  Kearsarge  and  the  Alabama  off  Cherbourg,  in  1864. 
A British  yacht,  the  Deerhound,  hovered  in  the  distance  and 
picked  up  Admiral  Semmes  and  various  members  of  the 
Alabama’s  crew.  The  neutrality  of  the  vessel  should  not  have 
protected  Admiral  Semmes,  for  a vessel  hovering  in  the  dis- 
tance for  the  purpose  of  rescuing  one  belligerent  to  the  exclu- 
sion of  the  other  commits  an  unneutral  act. 

In  a later  war,  namely  between  Russia  and  Japan,  a neutral 
man-of-war  received  on  board  the  unfortunates,  and  the  ques- 
tion arose  as  to  what  treatment  should  be  accorded  to  them. 
A neutral  man-of-war  is  not  a hospital  ship  and  clearly  a bellig- 
erent has  no  rights  upon  it.  The  neutral  man-of-war  possesses 
extraterritoriality,  and  may  give  or  refuse  asylum.  The  action 
of  the  neutral  man-of-war  may  be  regarded  as  unfriendly  if 
the  enemy  be  not  delivered  up  upon  request.  A refusal  might 
lead  to  a controversy  and  the  sword  is  the  last  argument  of 
kings.  Article  13  therefore  regulates  this  question  in  advance 
by  deciding  that  if  sick,  wounded  and  shipwrecked  are  received 
upon  neutral  men-of-war,  precautions  must  be  taken  to  see 
that  they  do  not  again  take  part  in  the  operations  of  war. 

As  stated  above,  injury,  sickness  and  shipwreck  do  not  con- 
fer of  themselves  immunity  upon  the  victim.  If  they  be  upon 
a vessel,  other  than  a neutral  war  vessel,  they  are  liable  to  cap- 
ture and  thus  become  prisoners  of  war,  and  it  is  for  the  captor 
to  decide  what  disposition  shall  be  made  of  them.  It  may  be 
that  he  offers  to  keep  them  under  his  control  and  supervision. 


ADAPTATION  OF  GENEVA  CONVENTION  TO  NAVAL  WARFARE  611 


or  to  send  them  to  his  home  port,  to  a neutral  port  or  even  to 
the  enemy’s  country.  If  sent  to  an  enemy  port  it  is  to  be  pre- 
sumed that  they  are  not  to  serve  during  the  balance  of  the 
war,  otherwise  the  belligerent  by  an  act  as  generous  as  it  is 
unexpected,  would  be  contributing  to  the  strength  of  the 
enemy.  (Article  14.)  And  such  is  the  language  of  the  con- 
vention. 

But  it  may  happen  that  the  captor  sends  them  to  a neutral 
port,  and  Article  15  resolves  the  duty  of  the  neutral  as  well  as 
the  consequences  to  the  unfortunates  landed  upon  its  shores, 
as  follows: 

The  shipwrecked,  sick,  or  wounded,  who  are  landed  at  a neutral 
port  with  the  consent  of  the  local  authorities,  must,  unless  an 
arrangement  is  made  to  the  contrary  between  the  neutral  State 
and  the  belligerent  States,  be  guarded  by  the  neutral  State  so  as 
to  prevent  them  again  taking  part  in  the  operations  of  the  war. 

The  expenses  of  tending  them  in  hospital  and  interning  them 
shall  be  borne  by  the  State  to  which  the  shipwrecked,  sick,  or 
wounded  persons  belong. 

This  article  was  the  subject  of  great  discussion  in  the  First 
Conference,  and  although  adopted,  it  was  by  general  consent 
stricken  from  the  convention,  owing  to  the  opposition  of  Ger- 
many, Great  Britain,  Turkey  and  the  United  States.  It 
seems  an  unjustifiable  extension  of  belligerent  rights  to  permit 
a captor  to  land  his  prisoners  of  war  in  a neutral  port.  Such 
conduct  bears  no  slight  resemblance  to  the  use  of  a neutral 
port  as  a base  of  operations.  Again,  it  is  difficult  to  imagine 
that  the  neutral  can  look  with  favor  upon  such  conduct  on 
the  part  of  a captor,  and  it  is  inconceivable  that  a neutral 
should  assume  duties  and  incur  expenses  merely  because  the 
captor  chose  to  relieve  himself  of  a burden  and  a responsibility 
at  the  expense  of  the  neutral.  Therefore,  the  unfortunates 
may  only  be  landed  with  the  consent  of  the  neutral;  by  general 
consent  the  neutral  undertakes  the  duty  to  guard  the  specified 
classes  in  such  a manner  that  they  may  not  again  take  part 
in  the  operations  of  war.  The  assumption  of  this  duty  is  to  be 
presumed  because  the  article  contemplates  a contrary  arrange- 
ment between  the  neutral  and  belligerent  State.  In  any  case 


612 


THE  HAGUE  PEACE  CONFERENCES 


the  expenses  are  not  to  be  borne  by  the  neutral.  It  would 
seem  natural  that  the  expense  incurred  should  be  met  by  the 
captor  and  such  undoubtedly  would  be  the  case  if  the  classes 
named  were  to  take  further  part  in  the  war.  As,  however, 
they  are  not  to  take  part  in  the  war,  the  captor  has  no  further 
connection  with  them  and  the  expenses  are  to  be  borne  by  their 
home  country. 

The  final  articles  of  this  section  properly  provide  that  the 
belligerents,  as  far  as  military  exigencies  permit,  shall  look  after 
the  shipwrecked,  the  wounded  and  sick  in  order  to  protect 
them  as  well  as  the  unfortunate  dead  against  pillage  and 
improper  treatment,  and  that  their  burial  whether  by  land  or 
sea  or  cremation  shall  be  preceded  by  a careful  examination 
of  the  bodies.  (Article  16.)^ 

Article  17  is  humanitarian  in  the  highest  degree,  for  it  pro- 
vides that  the  relatives  may  obtain  information  concerning 
the  dead  and  receive  where  possible  their  belongings.  I 
quote  the  article  in  full : 

Each  belligerent  shall  send,  as  early  as  possible,  to  the  authori- 
ties of  their  country,  navy,  or  army  the  military  marks  or  docu- 
ments of  identity  found  on  the  dead  and  the  description  of  the 
sick  and  wounded  picked  up  by  him. 

The  belligerents  shall  keep  each  other  informed  as  to  intern- 
ments and  transfers  as  well  as  to  the  admissions  into  hospital 
and  deaths  which  have  occurred  among  the  sick  and  wounded  in 
their  hands.  They  shall  collect  all  the  objects  of  personal  use, 
valuables,  letters,  etc.,  which  are  found  in  the  captured  ships,  or 
which  have  been  left  by  the  sick  or  wounded  who  died  in  hos- 
pital, in  order  to  have  them  forwarded  to  the  persons  concerned 
by  the  authorities  of  their  own  country.^ 

^ After  every  engagement  the  belligerent  who  remains  in  possession  of 
the  field  of  battle  shall  take  measures  to  search  for  the  wounded  and  to 
protect  the  wounded  and  dead  from  spoliation  and  ill  treatment. 

He  will  see  that  a careful  examination  is  made  of  the  bodies  of  the  dead 
prior  to  their  interment  or  incineration. — Geneva  Convention  of  July  6, 
1906,  Article  3. 

* As  soon  as  possible  each  belligerent  shall  forward  to  the  authorities  of 
their  country  or  army  the  military  tokens,  or  badges  of  identification, 
found  upon  the  bodies  of  the  dead,  together  with  a list  of  the  sick  and 
wounded  taken  in  charge  by  him. 

Belligerents  will  keep  each  other  mutually  advised  of  internments  and 


ADAPTATION  OF  GENEVA  CONVENTION  TO  NAVAL  WARFARE  613 


The  provisions  of  the  section  dealing  with  the  future  of  the 
sick,  wounded  and  shipwrecked  are  so  carefully  drawn  and 
strike  such  a fair  balance,  between  military  necessity  on  the 
one  hand  and  the  claims  of  the  unfortunates  on  the  other,  that 
there  is  every  reason  to  believe  that  they  will  be  observed  in 
spirit  as  well  as  in  letter.  The  unfortunates  are  to  be  cared 
for,  but  the  captor  is  permitted  to  exercise  his  undoubted 
right  to  make  them  prisoners,  to  retain  them,  and  to  determine 
for  himself,  without  embarrassment  from  the  convention,  the 
future  of  the  prisoners.  The  neutral  is  pressed  into  the  service, 
but  only  with  his  own  consent,  and  expenses  incurred  are 
borne  by  the  party  for  whose  benefit  they  have  been  created. 

The  final  articles  are  purely  formal  in  their  nature,  stating 
that,  while  binding  in  a war  between  contracting  powers,  anon- 
signatory  Power  is  not  entitled  to  their  benefit;  that  the  com- 
manders of  enemy  fleets  are  bound  to  see  that  the  articles  are 
properly  carried  out  and  that  omissions  are  filled  according  to 
the  instructions  of  their  home  governments  in  conformity  with 
the  provisions  of  the  present  convention  (Article  19) ; that  the 
Signatory  Powers  shall  instruct  their  naval  forces  and  make 
known  the  provisions  of  the  convention  to  the  public  (Article 
20) ; that  the  signatory  powers  shall  likewise  enact  appropriate 
legislation  punishing  the  violation  of  the  convention;  and 
that  they  shall  communicate  such  legislation  to  each  other. 
(Article  21.)  It  is  provided  that  in  case  of  joint  land  and 
naval  action  the  present  convention  applies  solely  to  forces 
actually  on  board  ship  (Article  22),  the  Geneva  conventions 
of  1864  and  1906  regulating  land  warfare. 

Finally,  nonsignatory  Powers  which  have  accepted  the 
Geneva  Convention  of  1906  are  given  permission  to  adhere  to 

transfers,  together  with  admissions  to  hospitals  and  deaths  which  occur 
among  the  sick  and  wounded  in  their  hands.  They  will  collect  all  valuable 
personal  belongings,  letters,  etc.,  which  are  foimd  upon  the  field  of  battle, 
or  have  been  left  by  the  wounded  or  by  those  who  have  died  in  sanitary 
formations  or  other  establishments,  for  transmission  to  interested  persons 
through  the  authorities  of  their  own  country. — Geneva  Convention  of 
July  6,  1906,  Article  4. 


614 


THE  HAGUE  PEACE  CONFEKENCES 


the  present  convention.  Such  is  the  convention  extending  to 
maritime  warfare  the  generous  and  humanitarian  principles 
of  the  Geneva  Convention.  (Article  24.) 

2.  The  Restriction  of  the  Right  of  Capture  in  N aval 

Warfare 

Little  by  little  the  theory  is  gaining  ground  that  war  is  a 
relation  between  State  and  State ; that  the  mass  of  people  not 
engaged  in  hostilities  shall  not  be  treated  as  enemies  or  at  least 
may  only  be  considered  as  prospective  enemies;  that  the  prop- 
erty of  the  enemy  on  land,  at  least,  is  exempt  from  capture 
and  confiscation,  although  it  may  be  destroyed  for  a military 
purpose,  requisitioned  upon  payment  or  promise  of  payment 
and  contributions  levied.  The  idea  underlying  the  Geneva 
convention  is  that  the  man  under  arms  and  capable  of  using 
them  is  a danger  and  a menace,  that  by  reason  of  injury  or 
sickness  he  ceases  to  be  enemy  and  acquires  the  right  to  aid 
and  assistance  in  order  to  be  restored  to  health.  In  view 
of  these  facts,  the  belief  has  grown  that  private  property 
upon  sea  should  not  be  destroyed  unless  its  destruction  is 
essential  to  military  operations,  that  it  might  be  b)^  analogy 
with  private  property  on  land  requisitioned,  subject  to 
contributions,  but  that  it  should  not  be  captured  and  con- 
fiscated merely  because  it  is  the  property  of  an  enemy  sub- 
ject or  citizen.  Unless  employed  with  a hostile  purpose,  it  is  as 
innocent  as  a noncombatant  and  should  not  be  molested. 
Practice,  it  must  be  said,  looks  askance  at  theory  and  while  it 
condemns  capture  upon  land  permits  it  upon  water.  The 
partisans  of  the  immunity  of  private  property  upon  the  high 
seas  look  with  favor  upon  any  recognition  of  their  theory, 
however  slight,  and  the  convention  imposing  certain  restric- 
tions upon  the  exercise  of  the  right  of  capture  in  maritime  war 
is  peculiarly  pleasing  to  them,  for  it  is,  as  it  were,  an  entering 
wedge. 

The  preamble  of  this  little  convention  betrays  a certain 
nervousness  lest  a general  statement  disclose  the  fact  that 


KESTRICTION  OP  THE  RIGHT  OF  CAPTURE 


615 


the  new  doctrine  has  really  gained  upon  the  old.  It  recognizes 
“the  necessity  of  more  effectively  insuring  than  hitherto  the 
equitable  application  of  law  to  the  international  relations  of 
maritime  powers  in  time  of  war/’  a statement  which  may 
mean  very  much  if  equitable  be  taken  in  the  large  sense.  The 
succeeding  paragraph  is,  one  might  almost  say,  storm 
tossed.  Considering  that  for  the  equitable  application,  “it 
is  expedient,”  to  quote  again  the  preamble: 

in  giving  up,  or,  if  necessary,  in  harmonizing  for  the  common 
interest  certain  conflicting  practices  of  long  standing,  to  com- 
mence codifying  in  regulations  of  general  application  the  guar- 
antees due  to  peaceful  commerce  and  legitimate  business  as  well 
as  the  conduct  of  hostilities  by  sea;  that  it  is  expedient  to  lay 
down  in  written  mutual  engagement  the  principles  which  have 
hitherto  remained  in  the  domain  of  controversy  or  have  been 
left  to  the  discretion  of  government,  that,  from  henceforth,  a 
certain  number  of  rules  may  be  made,  without  affecting  the 
common  law  now  in  force  with  regard  to  the  matters  which  that 
law  has  left  unsettled. 

The  words  are  indeed  many,  the  thoughts  are  very  few.  One 
might  expect  from  the  high  sounding  phrases  that  much  was  to 
be  given  up  or  that  much  was  to  be  regulated,  but  it  may  be 
said  that  the  least  possible  concession  to  the  immunity  of  pri- 
vate property  is  given  which  it  is  possible  to  give.  The  slight- 
est gift,  however,  is  a recognition  of  the  principle. 

The  convention  consists  of  three  principle  chapters  dealing 
repectively  with  postal  correspondence;  the  exemption  from 
capture  of  certain  vessels,  and  regulations  regarding  the  crews 
of  enemy  merchant  ships  captured  by  a belligerent. 

First  of  postal  correspondence: 

“In  the  actual  state  of  international  law”  says  the  learned 
reporter  of  the  convention,  “the  transmission  of  postal  corre- 
spondence by  sea  is  not  assured  in  time  of  war  by  any  serious 
guarantee.  A distinction  is  indeed  made  according  to  the 
private  or  ofl&cial  character  of  the  correspondence,  according  to 
the  personality  of  the  sender,  and  the  addresses  belonging  or 
not  to  the  service  of  the  enemy,  according  to  whether  the  vessel 
is  a regulation  mail  ship,  or,  finally,  according  to  the  place  of 
departure  or  of  destination.  The  result  is  none  the  less,  in 
point  of  fact,  seizure,  opening  of  the  mail-bags)!  spoliation,  in 


616 


THE  HAGUE  PEACE  CONFERENCES 


case  of  need,  confiscation.  In  every  case  delay  or  even  loss  is 
the  lot  ordinarily  reserved  to  mail-bags  traveling  by  sea  in  time 
of  war. 

In  view  of  all  these  facts  ‘fit  is  expedient,”  in  the  language 
of  the  preamble,  “to  lay  down  in  written  mutual  agreement 
the  principles  which  have  hitherto  remained  in  the  uncertain 
domain  of  controversy  or  have  been  left  to  the  discretion  of 
governments.” 

The  convention  therefore  provides  in  Article  1 that  the 

postal  correspondence  of  neutrals  or  belligerents,  whatever  its 
official  or  private  character  may  be,  found  on  the  high  seas  on 
board  a neutral  or  enemy  ship,  is  inviolable.  If  the  ship  is 
detained,  the  correspondence  is  forwarded  by  the  captor  with  the 
least  possible  delay. 

In  other  words,  postal  correspondence  is  declared  to  be  invi- 
olable irrespective  of  its  nationality  or  nature.  Nor  is  the 
correspondence  tainted  by  its  surroundings.  It  is  inviolable 
whether  it  be  carried  by  a neutral  or  enemy  ship.  If  the  ship 
be  detained  or  confiscated  it  is  only  natural  that  the  corre- 
spondence does  not  share  its  fate  and  is  to  be  forwarded  with 
the  least  possible  delay. 

In  the  preceding  article  it  is  conclusively  presumed  that  the 
correspondence  is  innocent  and  the  article  suggests  no  way  in 
which  this  presumption  may  be  rebutted  or  overcome.  How- 
ever, in  the  concluding  paragraph  of  the  article  guilt  is  im- 
puted, and  in  such  a case  the  inviolability  does  not  attach. 
For  example,  “the  provisions  of  the  preceding  paragraph  do 
not  apply  in  the  case  of  violation  of  blockade,  to  correspond- 
ence destined  for  or  proceeding  from  a blockaded  port.”  A 
blockaded  port  is  isolated  providing  the  blockade  is  effective, 
otherwise  it  is  not  binding.  Trade  with  the  blockaded  port  is 
forbidden,  as  well  as  all  ingress  or  egress.  Therefore,  it  follows 
naturally  that  correspondence,  however  inviolable  elsewhere, 
may  be  excluded  from  blockaded  ports.  While  international 
law  looks  with  favor  upon  the  mail  ship  it  is  not  exempt  from 

' Report  to  the  Conference  by  M.  Henri  Fromageot,  La  Deuxieme  Con- 
r4fence  Internationale  de  la  Paix,  1907,  Actes  et  Documents,  Vol.  I,  p.  266. 


RESTKICTION  OF  THE  RIGHT  OF  CAPTURE 


617 


capture  if  it  belongs  to  the  enemy.'  If  it  be  neutral  it  is  sub- 
ject to  the  laws  and  customs  of  maritime  war.  But  if  it  be  a 
mail  ship  the  presumption  either  should  be  against  searching 
it  or  the  search  should  be  only  when  absolutely  necessary  and 
then  only,  to  quote  the  language  of  Article  2,  “with  as  much 
consideration  and  expedition  as  possible.” 

The  next  chapter  of  the  convention  deals  with  the  exemp- 
tion from  capture  of  certain  vessels.  The  articles  are  but 
two  in  number  and  either  declaratory  of  the  law  of  nations, 
or  of  the  most  enlightened  international  usage.  For  example. 

Vessels  used  exclusively  for  fishing  along  the  coast,  or  small 
boats  employed  in  local  trade  are  exempt  from  capture,  as  well 
as  their  appliances,  rigging,  tackle  and  cargo. 

Analyzing  this  article  it  appears  that  the  fishing  smacks  are 
engaged  in  inshore  fishing  and  that  they  are  to  be  used  exclu- 
sively for  fishing.  This  is  the  law  of  the  United  States  as  laid 
down  in  the  Paquete  Habana,^  a case  involving  the  capture  of 
fishing  smacks  off  the  coast  of  Cuba.  The  Supreme  Court  held 
in  an  elaborate  and  very  learned  opinion,  in  which  the  authori- 
ties are  practically  exhausted,  that  such  smacks  are  not  subject 
to  capture.  The  second  paragraph,  however,  marks  an  advance 
toward  the  immunity  of  private  property,  and  the  proposal 
came  from  Austria-Hungary,  a partisan  of  the  doctrine. 
Small  boats  employed  in  local  trade  are  exempt  from  capture. 
It  will  be  noted  that  the  provisions  are  very  general  in  their 
nature,  the  size  or  character  of  the  vessels  is  not  specified 
nor  is  the  coast,  whether  it  be  the  home  coast  or  a coast 
belonging  to  another  country.  In  the  discussion,  the  coast 
of  Morocco  was  used  as  an  example.  Nor  is  local  trade  defined 
or  specified.  The  conference  meant  to  be  generous,  and  it  is 
not  too  much  to  predict  that  these  stipulations  will  be  very 
broadly  interpreted;  for  people  engaged  in  this  trade  are  harm- 

'The  Panama,  176  U.  S.,  535  (1899). 

’ Coastfishing  vessels,  with  their  implements  and  supplies,  cargoes  and 
crews,  imarmed,  and  honestly  pursuing  their  peaceful  calling  of  catching 
and  bringing  in  fresh  fish,  are  exempt  from  capture  as  prize  of  war. 
—The  Paquete  Habana.  175  U.  S.  677.  708  (1899). 


618 


THE  HAGUE  PEACE  CONFERENCES 


less  to  the  enemy,  necessary  to  the  home  country,  and  are 
dependent  for  their  small  earnings  upon  the  right  to  follow 
their  calling  notwithstanding  the  existence  of  war. 

But  the  right,  small  as  it  is,  is  forfeited  by  taking  any  part 
whatever  in  hostilities.  On  the  other  hand,  the  contracting 
powers  agree  not  to  take  advantage  of  the  harmless  character 
of  the  vessels  in  order  to  use  them  for  military  purposes  while 
preserving  their  peaceful  appearance.  This  final  paragraph  of 
Article  3 is  too  clear  for  comment,  for  fraud  in  nations  is  cer- 
tainly as  reprehensible  as  in  individuals,  although  less  fre- 
quently punished,  and  the  contracting  powers  should  not  set 
a bad  example  to  their  citizens  and  subjects. 

Article  4 provides  that  “vessels  charged  with  religious, 
scientific  or  philanthropic  missions  are  likewise  exempt  from 
capture,”  a provision  declaratory  of  international  law.*  It 
is  unnecessary  to  state  that  the  exemption  cannot  be  claimed 
if  there  be  the  slightest  participation  in  the  war. 

These  are,  it  must  be  admitted,  very  modest  provisions, 
but  if  they  are  in  the  interest  of  innocent  commerce  it  is  diffi- 
cult to  see  how  the  extension  of  immunity  to  unoffending 
enemy  property  in  general  would  not  be  still  more  commend- 
able. In  considering  the  American  proposition  for  the  immu- 
nity of  enemy  property  in  general  and  the  modest  result 
obtained,  due,  not  to  the  initiative  of  the  American  delegation, 
but  to  M.  de  Martens,  an  opponent  of  the  immunity,  one  is 
reminded  of  the  mountain  in  labor  that  brought  forth  a mole. 

The  final  chapter  of  the  convention,  consisting  of  four 

' Finally  vessels  engaged  in  exploration  or  scientific  discovery  are 
granted  immunity  from  capture.  The  usage  began  in  the  last  century 
when  Bouganville  and  La  P6rouse  appear  to  have  been  furnished  with  safe 
conducts  to  protect  them  in  the  event  of  war  breaking  out  during  their 
voyage,  and  the  French  government  in  1776  ordered  all  men-of-war  and 
privateers  to  treat  Captain  Cork  as  a neutral  so  long  as  he  abstained  from 
acts  of  hostility.  During  the  present  century  there  have  been  several 
occasions  on  which  there  has  been  reason  for  behaving  in  a like  manner, 
and  on  which  accordingly  vessels  have  been  furnished  with  protection. 
The  most  recent  of  these  was  the  dispatch  of  the  Austrian  Corvette  Novara 
on  a scientific  expedition  in  1859. — Hall’s  International  Law  (5th  ed.),  p. 
425. 


RESTKICTION  OF  THE  RIGHT  OF  CAPTURE 


619 


articles,  is  a further  recognition  of  the  principle  that  only 
actual  participants  in  war  shall  be  considered  and  treated  as 
enemies.  An  enemy  merchant  ship  is  still  liable  to  capture, 
but  the  crew,  subjects  or  citizens  of  a neutral  State,  are  not 
to  be  made  prisoners  of  war.  A different  rule  is  applied  by 
the  convention  to  captains  and  officers.  These  are  not  set  at 
liberty  as  of  course;  they  are  required  to  promise  formally 
in  writing  not  to  serve  on  an  enemy  ship  during  the  war.  The 
reason  for  the  distinction  seems  to  be  that  the  crew  must 
perforce  take  service  wherever  they  find  it.  The  captain  and 
officers  are  supposed  to  be  more  intelligent  and  therefore  able 
to  choose.  In  any  case  the  convention  established  the  dis- 
tinction. 

The  convention  then  considers  the  case  of  officers  and  crew 
belonging  to  the  enemy,  and  makes  their  liberty  depend  upon 
the  reasonable  condition  that  they  make  formal  promise  in 
writing  not  to  undertake  during  the  continuance  of  hostilities 
any  ser\dce  connected  with  the  war.  The  distinction  between 
the  two  classes  seems  to  be  founded  in  reason,  because  a neu- 
tral, even  although  employed  upon  an  enemy  merchantman,  is 
only  an  enemy  by  construction  and  should  not  be  treated 
permanently  as  an  enemy;  whereas  the  enemy  is  liable  at  any 
time  to  be  pressed  into  service  and  the  experience  had  upon  a 
merchantman  may  be  turned  to  good  account  upon  a man-of- 
war.  The  merchant  marine  was  the  training  school  for  the 
navy  in  former  times,  and  many  a skillful  American  sailor  was 
impressed  into  the  British  navy  in  the  days  of  visit  and  search 
and  did  good  service  notwithstanding  the  wrongfulness  of 
the  transaction.  But  the  service  on  a man-of-war  is  very 
different  from  the  training  of  the  merchantman,  and  it  is 
doubtful  whether  the  merchantman  supplies  many  sailors  to 
the  modem  navy. 

The  learned  reporter  considers  in  his  able  commentary  the 
form  of  the  promise  and  states  it  to  be  the  same  as  in  the  pre- 
vious article.  It  is  understood  that  a sailor  who  does  not 
know  how  to  write  or  sign  his  promise  should  have  it  acknowl- 
edged in  writing  before  witnesses  of  his  nationality  and  in  the 


620 


THE  HAGUE  PEACE  CONFERENCES 


presence  of  the  captain.  It  did  not  seem  necessary,  he  adds, 
to  introduce  the  detail  of  this  formality  into  the  text.^ 

As  in  the  case  of  the  exemption  of  fishing  smacks  and  small 
boats  engaged  in  local  trade,  so  in  the  present  chapter  the 
cooperation  of  the  State  is  required.  For  example,  the  names 
of  the  neutral  captains  and  officers  are  notified  by  the  bellig- 
erent captor  to  the  other  belligerent  so  that  he  may  not  know- 
ingly employ  these  persons  and  the  belligerent  is  forbidden 
in  express  terms  by  the  convention  to  employ  them.  The 
temptation  is  thus  removed  from  both  parties.  It  need  hardly 
be  said  that  the  provisions  of  this  chapter  do  not  apply  to 
ships  taking  part  in  hostilities.  The  exemption  from  capture 
is  based  solely  upon  the  fact  that  their  occupation  is  innocent 
and  in  no  way  connected  with  the  war.  Otherwise  if  captured 
they  are  prisoners. 

3.  The  Rights  and  Duties  of  Neutral  Powers  in 
Naval  Warfare* 

“Neutral  rights  and  duties”  are  phrases  with  which  inter- 
national law  is  very  familiar,  but,  notwithstanding  their 
frequency,  they  are  neither  universally  nor  accurately  defined. 
The  neutral  stands  upon  its  right,  the  belligerent  insists  upon 
the  duty,  and  the  result  is  a compromise  depending  upon  the 
circumstances  of  the  case  or  upon  the  weakness  of  the  neutral 
and  the  force  at  the  disposal  of  the  belligerent.  Therefore,  it  is 
not  to  be  wondered  at  that  the  subject  bristles  with  difficulties, 
and  it  is  astonishing  that  a convention  was  agreed  upon  rather 
than  that  its  stipulations  are  not  in  all  respects  satisfactory. 
The  convention,  is,  however,  the  result  of  deep  and  prolonged 
discussion,  and  the  powers  seemed  genuinely  desirous  to  reach 
an  agreement.  The  result  is  a compromise  in  which  extreme 
pretension  of  belligerent  right  yielded  to  neutral  concession. 
And  however  defective  and  indefinite  some  of  its  provisions 
may  be,  the  convention  is  an  earnest  and  solid  bit  of  work. 

^ Report  of  M.  Fromageot,  La  Deuxieme  Conference  Internationale  de 
la  Paix,  1907,  Actes  et  Documents,  Vol.  I,  p.  268. 

^See  the  careful  and  elaborate  report  of  M.  Renault  in  La  Deuxieme 
Conference  Internationale  de  la  Paix,  1907,  Actes  et  Documents  vol.  i,  pp. 
295-326. 


RIGHTS  AND  DUTIES  OF  NEUTRAL  POWERS 


621 


It  is  a serious  attempt  to  codify  a very  important  subject  and 
there  can  be  no  doubt  that  it  is  conceived  along  correct  and 
progressive  lines.  It  is  unfortunate,  however,  that  the  regula- 
tions adopted  by  the  Conference  often  state  rather  than  impose 
a general  principle,  leaving  the  neutrals  the  right  to  vary  it 
by  local  legislation. 

The  convention  concerning  the  rights  and  duties  of  neutral 
states  and  persons  in  land  warfare  declares  properly  that  the 
territory  of  neutral  States  is  inviolable.  The  present  conven- 
tion is  based  not  merely  upon  the  fact  that  neutral  States  are 
inviolable  but  that  neutral  States  are  sovereign;  that  their 
rights  spring  from  sovereignty,  and  that  the  duties  imposed 
upon  them  are  duties  upon  sovereign  States  in  the  interest  of 
the  community  of  nations.  If,  therefore,  it  be  a principle  of 
international  law  that  the  neutral  State  be  both  inviolable 
and  sovereign,  it  follows  that  a belligerent  commits  a wrong  in 
violating  neutral  territory  and  thus  infringing  neutral  sover- 
eignty. It  may  be  the  duty  of  the  neutral  to  prevent  this  action 
on  the  part  of  the  belligerent,  but  it  is  a duty  called  into  being 
by  virtue  of  a wrongful  belligerent  act.  The  belligerent  should 
be  forbidden  to  commit  the  act  in  question  and  if  this  act 
violates  neutral  territory,  therefore  neutral  sovereignty,  the 
neutral  may  resent  it.  If  the  act  committed  within  neutral 
jurisdiction  injures  another  State,  the  neutral  must  resent  it 
and  take  appropriate  measures  to  correct  it.  This  idea  under- 
lies the  convention  and  is  its  distinctive  characteristic . It  is  ex- 
pressly recognized  in  its  first  article  which  deserves  quotation. 

Belligerents  are  bound  to  respect  the  sovereign  rights  of 
neutral  Powers  and  to  abstain,  in  neutral  territory  or  neutral 
waters,  from  any  act  which  would,  if  knowingly  permitted  by 
any  Power,  constitute  a violation  of  neutrality. 

The  modern  theory  of  neutrality  is  embodied  in  this  article. 
The  belligerent  is  bound  to  abstain  from,  and  the  neutral  dare 
not  permit  the  act;  for  if  the  belligerent  commits  an  act  within 
neutral  jurisdiction  injuriously  affecting  another  belligerent, 
the  neutral  may  be  said  to  make  itself  a party  to  the  act,  if 
done  with  its  knowledge.  If  it  permits  the  act  to  go  without 


622 


THE  HAGUE  PEACE  CONFERENCES 


protest  and  if  it  does  not  endeavor  to  undo  the  consequences  of 
the  act,  the  neutral  allows  its  territory  to  be  used  as  a basis  of 
operations;  hence  the  duty  imposed,  hence  the  limitation  upon 
the  untrammeled  sovereignty  of  the  neutral.  It  may  make 
itself  an  open  ally  of  the  belligerent ; it  cannot  allow  the  bellig- 
erent the  benefit  of  hostile  acts  without  alliance.  Its  self- 
respect  should  resent  the  action  of  the  belligerent,  the  dis- 
advantage to  the  injured  States  imposes  a duty.  The  older 
practice  found  the  essence  of  neutrality  to  consist  in  extending 
an  equal  right  to  both  belligerents;  the  modern  doctrine 
insists  that  the  neutral  shall  no  longer  suffer;  it  must  prevent 
a hostile  act  by  either  belligerent  within  its  territory.  It  is 
not  a party  to  the  war,  it  cannot  be  made  to  render  assistance 
or  its  territory  used  without  becoming  a party. 

It  therefore  follows  that  capture  by  either  belligerent  within 
neutral  waters  is  not  only  a violation  of  neutral  sovereignty 
but  of  neutrality  as  well,  because,  if  permitted,  neutral  terri- 
tory is  at  once  made  the  basis  of  hostile  action.  In  the  same 
way  the  exercise  of  the  right  of  visit  and  search  within  neutral 
waters  is  inconsistent  with  a respect  for  neutrality,  because 
visit  and  search  being  a belligerent  act  its  exercise  within 
neutral  waters  is  the  prosecution  of  hostilities  within  neutral 
waters.  The  belligerent  therefore  should  be  forbidden  to 
make  such  use  of  neutral  territory  and  the  neutral  should 
resent  it,  in  the  interest  of  the  other  belligerent  if  not  in  its 
proper  interest.  Therefore  Article  2,  forbidding  every  act  of 
hostility  including  the  right  of  capture  and  the  exercise  of  the 
right  of  visit  and  search,  is  declaratory  of  modern  international 
law  and  enlightened  practice.  But  supposing  an  act  of  hostil- 
ity has  been  committed,  for  example,  an  enemy  vessel  has 
been  captured  within  neutral  waters,  what  steps  should  be 
taken  to  redress  the  wrong?  Neutral  sovereignty  has  been 
violated,  but  as  the  neutral  is  sovereign  it  may  overlook  the 
violation,  indeed,  it  may  find  it  to  its  interest  to  do  so  if  it  be 
a very  small  power  and  the  captor  very  powerful.  The  wrong, 
however,  is  not  confined  to  the  neutral,  because,  by  reason  of 
the  violation  of  neutral  sovereignty,  property  of  the  belligerent 


RIGHTS  AND  DUTIES  OF  NEUTRAL  POWERS 


623 


has  been  seized,  and  it  may  be  destroyed.  The  enemy  prop- 
erty, we  will  suppose,  was  rightfully  within  neutral  jurisdic- 
tion and  the  neutral  power  owed  it  protection  against  wrongs 
committed  within  its  jurisdiction.  Therefore  the  injured 
belligerent  has  a right  to  complain.  A duty  therefore  is 
imposed  upon  the  neutral  for  the  benefit  of  the  injured  belhg- 
erent.  The  neutral  should  redress  the  wrong,  and  the  best 
redress  is  to  undo  the  wrong  by  seizing  the  captured  property, 
technically  called  the  “prize,”  and  delivering  it  to  its  rightful 
belligerent  owner.  It  may  be  that  the  neutral  is  unable  to 
restore  the  prize,  but  it  should  use  the  means  at  its  disposal  to 
release  it  with  its  officers  and  crew,  and  to  intern  the  prize 
crew  which  the  captor  unlawfully  placed  upon  the  vessel. 
More  cannot  well  be  asked,  less  would  associate  the  neutral 
with  the  hostile  act.  And  such  is  the  provision  of  Article 
3. 

It  may  be,  however,  that  the  captor  has  escaped  with  the 
prize.  This  cannot,  however,  change  the  duty  of  the  neutral 
to  secure  the  return  of  the  prize  to  its  rightful  owner.  It 
affects  solely  the  means,  for  the  neutral  can  no  langer  seize 
j the  property  within  its  jurisdiction  and  cause  its  return.  It 
should  not  be  obliged  to  follow  the  captor  upon  the  high  seas 
in  order  to  take  possession  of  the  property,  for  this  would  pun- 
ish the  neutral  for  the  hostile  act  of  the  belligerent.  The  neu- 
tral, therefore,  should  only  use  the  power  in  its  control,  protest 
against  the  violation  of  its  sovereignty  and  insist  that  the 
prize  and  its  crew  be  liberated.  This  likewise  is  the  require- 
ment of  Article  3 and  is  in  strict  accord  with  the  theorj^  and 
practice  of  nations. 

Captures  have  unfortunately  been  made  in  neutral  waters 
and  controversies  arising  from  such  unneutral  conduct  have 
been  long  and  bitter.  The  capture  of  the  General  Arm- 
strong, an  American  privateer,  in  the  territorial  waters  of  Por- 
tugal by  a British  squadron,  during  the  War  of  1812  between 
Great  Britain  and  the  United  States,  has  been  referred  to  and 
the  settlement  of  the  claim  of  the  United  States  against  Portu- 
gal by  arbitration  of  the  Prince  President  of  France  has  been 


624 


THE  HAGUE  PEACE  CONFEKENCES 


noted.  As  is  well  known  the  United  States  eventually  paid 
its  own  claimant  a lump  sum  in  satisfaction  of  the  claim. ^ 

Another  case  arose  during  the  same  war  by  reason  of  the 
capture  in  1815  of  the  Levant,  the  twin  prize  of  the  frigate  Con- 
stitution, in  the  Portuguese  port  of  Praga,  anchored  close  to 
the  land  battery. 

She  was  in  this  position  when  the  enemy’s  ships  stood  in, 
fired  at  her,  and  forced  her  to  surrender,  took  possession  of  her, 
and  carried  her  out  of  the  harbor,  without  the  Portugese  author- 
ities attempting  to  hinder  or  prevent  them,  or  offering  any 
resistance  or  remonstrance  to  the  violation  of  the  neutral  rights 
and  sovereignty  of  Portugal.^ 

On  suit  brought  by  Commodore  Stewart,  the  famous  com- 
mander of  the  Constitution,  to  obtain  compensation  for  the 
loss  of  the  prize,  the  Court  of  Claims  held,  and  rightly,  that 
in  1815  capture  transferred  title  to  the  United  States  and  that 
it  was  only  vested  in  the  individual  captor  by  the  decision 
of  a competent  court  of  prize. 

There  can  be  little  doubt  that  the  facts  set  forth  in  the 
petition  show  that  the  officer  in  command  of  the  British  squad- 
ron was  guilty  of  the  violation  of  the  neutral  rights  of  Portugal 
in  making  in  her  territory  the  scene  of  conflict  with  and  capture 
of  this  vessel.  For  such  an  insult  to  her  sovereignty  and 
invasion  of  her  first  rights  as  a neutral,  she  had  just  grounds, 
under  the  law  of  nations  to  claim  indemnity  and  reparation  from 
Great  Britain.  It  is  equally  clear,  we  think,  that  the  United 
States  had  the  right  to  insist  upon  indemnity  from  Portugal  for 
this  invasion  of  her  right  of  asylum  in  a neutral  port.® 

The  language  of  Sir  William  Scott  is  more  pointed. 

When  the  capture  within  the  neutral  territory  is  established, 
it  overrules  every  other  consideration.  The  capture  is  done 
away;  the  property  must  be  restored,  notwithstanding  it  may 
actually  belong  to  the  enemy 

Great  Britain  violated  neutral  rights  in  the  cases  of  the 
General  Armstrong  and  the  Levant,  but  the  United  States  was 

^ See  Chapter  V,  pp.  2.35-236. 

“ Commodore  Stewart’s  Case,  1 Court  of  Claims  113  (1864). 

3 Ibid. 

* The  Vrouw  Anna  Catharina,  5 Rob.  15  (1803). 


RIGHTS  AND  DUTIES  OF  NEUTRAL  POWERS 


625 


equally  guilty  in  the  case  of  the  Florida,  unlawfully  captured 
in  1864  in  the  territorial  waters  of  Brazil,  during  the  war 
between  the  States,^  and  in  the  case  of  the  Chesapeake 
seized  in  1863  within  the  territorial  waters  of  Nova  Scotia.^  In 
both  cases,  however,  the  United  States  made  reparation.  On 
August  11,  1904,  in  the  recent  Russo-Japanese  War,  Japan 
seized  and  removed  by  force  from  a Chinese  port,  Che-Foo, 
the  Ryeshitelni,  a Russian  torpedo  boat  destroyer,  which 
had  taken  refuge  in  the  neutral  port.  For  this  violation  of  the 
law  of  nations  no  apology  was  made  or  satisfactory  reason 
given.® 

These  examples  taken  from  the  nations  recognizing  and 
ordinarily  applying  international  law  in  their  foreign  relations 
show  that  a restatement  of  the  law  in  the  form  of  a universal 
convention  was  not  wholly  without  reason.^ 

If  the  sovereignty  of  a nation  be  taken  as  the  key  to  the 
convention.  Article  4,  which  provides  that,  “A  Prize  Court  can- 
not be  set  up  by  a belligerent  on  neutral  territory  or  on  a vessel 
I in  neutral  water,”  will  require  little  comment  or  explanation. 

I A nation  must  be  supreme  throughout  its  entire  jurisdiction, 

! otherwise  it  cannot  be  considered  independent.  The  establish- 

j ment  of  a court  is  an  exercise  of  sovereignty.  If  a belligerent 
“ establishes  a court,  it  exercises  a sovereign  right  within  neutral 

i\  territory.  It  is  at  once  evident  that  the  sovereignty  of  the 

I neutral  cannot  permit  either  its  territory  or  its  waters  to  be  thus 
used  by  a belligerent  without  its  consent,  and  if  it  consents  it 
becomes  an  ally:  it  ceases  to  be  neutral. 

The  reprehensible  conduct  of  "Citizen”  Genet  in  fitting  out 
vessels  to  cruise  against  Great  Britain  and  in  creating  courts 
in  the  United  States  for  the  trial  and  condemnation  of  vessels 
captured  even  in  American  waters  is  known  to  every  school- 
boy, Our  government  could  not  and  did  not  submit  to  such 
violations  of  its  neutrality. 

* See  Chapter  X,  pp.  485-486. 

I * Moore’s  International  Law  Digest,  vol.  i,  366,  vol.  vii,  937. 

® See  Hershey’s  International  Law  and  Diplomacy  of  the  Russo-Japanese 
War,  pp.  258-263. 

* The  reader  wUl  note  the  apparent  conflict  between  the  provisions  of 
Article  3 and  the  corresponding  article  in  the  Prize  Court  Convention. 


626 


THE  HAGUE  PEACE  CONFERENCES 


The  sovereignty  of  the  neutral  is  likewise  the  key  to  Article 
5,  although  the  inhibition  is  against  the  belligerent.  For 
example,  it  is  forbidden 

to  use  neutral  ports  and  waters  as  a base  of  naval  operations 
against  their  adversaries,  and  in  particular  to  erect  wireless 
telegraphy  stations  or  any  apparatus  for  the  purpose  of  com- 
municating with  the  belligerent  forces  on  land  or  sea. 

It  is  to  be  noted  that  the  article  is  divided  into  two  parts,  and 
that  the  inhibition  is  twofold,  first  the  belhgerent  shall  not 
use  neutral  ports  and  waters  as  a basis  of  naval  operations, 
and  secondly,  the  belligerent  shall  not  use  them  as  a basis  for 
communicating  with  its  land  or  naval  forces.  The  failure 
to  give  full  effect  to  the  provisions  of  this  article  threatened  at 
one  time  a war  between  Great  Britain  and  the  United  States, 
for  it  will  be  recalled  that  under  protest  Great  Britain  per- 
mitted its  ports  and  territorial  waters  to  be  used  by  the  Con- 
federate States  as  a basis  of  naval  operations  against  the 
United  States.  The  controversies  arising  out  of  the  unneutral 
conduct  of  Great  Britain  were  fortunately  settled  by  arbitra- 
tion at  Geneva,  but  the  principles  of  law,  the  so-called  “ rules” 
for  the  guidance  of  the  court,  were  determined  by  Great  Britain 
and  the  United  States  by  Article  6 of  the  Treaty  of  Washing- 
ton, in  1871.  The  first  part  of  the  second  rule  was  thus 
expressed:  “A  neutral  government  is  bound  not  to  permit  or 
suffer  either  belligerent  to  make  use  of  its  ports  or  waters  as 
the  basis  of  naval  operations  against  the  other.”  It  will  be 
observed  that  the  neutral  is  taxed  with  a duty,  and  rightly 
so,  because  the  unneutral  act  had  already  taken  place  and  the 
purpose  of  the  treaty  was  to  render  the  neutral  responsible  for 
its  cooperation  or  negligence.  The  present  convention,  how- 
ever, aims  to  prevent  the  commission  of  such  acts  and  there- 
fore imposes  a duty  upon  the  belligerent  not  to  commit  such 
an  act.  It  is  evident  that  the  commission  of  the  act  renders 
the  belligerent  liable  to  the  neutral;  it  is  equally  evident  that, 
in  the  language  of  the  Treaty  of  Washington,  “a  neutral 
government  is  bound  not  to  permit  or  suffer  either  belligerent 
to  make  use  of  its  ports  or  waters  as  a base  of  naval  opera* 


RIGHTS  AND  DUTIES  OF  NEUTRAL  POWERS 


627 


tions  against  the  other,”  because  by  so  doing  it  will  undoubt- 
edly render  itself  liable  in  the  future  as  it  did  in  the  past  to  the 
injured  belligerent.  It  is  frequently  maintained  that  the 
three  rules  of  the  Treaty  of  Washington  were  not  declaratory 
of  international  law  at  the  time  of  their  adoption;  and  that 
they  are  therefore  only  binding  upon  the  parties  to  the  treaty, 
namely.  Great  Britain  and  the  United  States . It  is  insisted  with 
greater  reason  that  the  three  rules  represent  correctly  inter- 
national law  and  that  no  nation  would  be  likely  to  disregard 
them.  However  this  may  be,  the  three  rules  of  Washington 
made  their  formal  entry  into  international  law  and  are  recog- 
nized both  in  letter  and  spirit  by  the  present  convention.  The 
final  clause  of  Article  5 deals  with  the  means  of  communica- 
tion and  prohibits  belligerents  from  using  neutral  ports  and 
waters  as  a basis  of  communication  with  their  armed  forces. 
The  convention  concerning  neutral  powers  and  persons.  Arti- 
cle 3,  paragraph  a,  forbade  belligerents  to  install  wireless 
stations  upon  neutral  land,  and  the  present  convention  adopts 
and  extends  this  to  the  territorial  waters,  and  rightly,  because 
the  act  should  be  forbidden  within  neutral  jurisdiction  and 
i neutral  jurisdiction  is  supreme  within  its  territory  and  terri- 

j torial  waters.  The  principle  is  therefore  one  and  the  same. 

I Its  recognition  is  twofold. 

i It  will  be  observed  that  the  first  five  articles  which  have 
I been  passed  briefly  in  review  aim  to  prevent  the  belligerent 
from  infringing  neutral  sovereignty.  The  duty  is  thus 
j imposed  upon  the  belligerent  who  is  forbidden  in  express 
I terms  to  commit  certain  acts  within  neutral  territory  which 
are  likewise  an  injury  to  the  co-belligerent.  The  neutral  is 
of  course  involved,  but  his  duty  is  predicated  upon  an  unlawful 
and  therefore  unpermissible  act  of  the  belligerent.  The  con- 
vention, however,  deals  directly  with  the  neutral  and  desig- 
nates certain  acts  as  unneutral  and  therefore  not  permitted. 
It  may  be  wrong  for  the  belligerent  to  take  advantage  of  such 
acts,  but  the  illegality  in  the  first  place  arises  from  neutral 
misconduct  and  therefore  a direct  duty  is  imposed  upon  the 
neutral  not  to  commit  the  act  specified.  For  example,  “the 


628 


THE  HAGUE  PEACE  CONFEEENCES 


supply  in  any  manner,  directly  or  indirectly  by  a neutral 
power  to  a belligerent  power,  of  warships,  ammunition,  or 
war  material  of  any  kind  whatever,  is  forbidden.”  The  pur- 
pose of  this  article  is  to  forbid  the  State  directly  or  indirectly 
from  participation  in  hostilities,  whether  it  be  by  sale  or 
delivery  of  warships,  ammunition,  or  war  material  of  any  kind. 
It  would  seem,  therefore,  to  be  improper  for  a State  to  furnish 
a belligerent  with  a loan  for  the  purpose  of  war.  It  would  be 
likewise  improper  for  a State  to  sell  or  present  its  navy,  to 
open  its  arsenals  or  even  to  dispose  of  its  womout  equipment, 
for  by  so  doing  the  State  directly  aids  a belligerent.  Neutral- 
ity, as  has  been  stated,  involves  more  than  impartiality.  It 
requires  the  State  to  abstain  from  any  act  conceived,  calculated 
or  which  actually  does  aid  and  abet  the  enemy.  It  is  unfortu- 
nately true  that  our  country  has  at  times  measured  its  neutral 
duty  by  another  standard. 

The  sale  by  the  United  States  to  agents  of  the  French 
government  during  the  Franco-Prussian  War  of  arms  and 
munitions  of  war  which  had  accumulated  during  the  Civil  War 
was  unjustifiable  from  every  point  of  view.* 

The  State  is  thus  forbidden  to  furnish  the  means  of  war. 
Does  a strict  and  progressive  neutrality  prevent  its  subjects 
or  citizens  from  doing  the  acts  which  the  State  is  specifically 
forbidden  to  do?  It  is  too  clear  for  argument  that  “ supplies  of 
food,  clothing,  arms,  ammunition,  and  in  general  anything  of 
use  to  any  army  or  fleet”  must  have  a direct  bearing  upon  the 
conduct  of  war  and  tend  to  prolong  it.  There  may  be  no 
difference  in  the  ultimate  result  whether  these  supplies  are 
furnished  by  the  State  or  by  its  citizens.  The  act  whether 
by  State  or  individual  necessarily  inures  to  the  benefit  of  one  or 
the  other  belligerent,  and  to  this  extent  it  is  unneutral  and 
therefore  wrong.  But  practice  recognizes,  and  rightly,  a dis- 
tinction between  the  intervention  of  the  State  and  the  activity 
of  the  individual.  If  the  State  directly  or  indirectly  furnishes 
the  supplies,  it  is  a State  act,  which  entitles  the  belligerent  to 


^ See  Moore’s  International  Law  Digest,  Vol.  VII,  §1309,  pp.  973-975. 


RIGHTS  AND  DUTIES  OF  NEUTRAL  POWERS 


629 


protest;  it  is  to  be  presumed  that  the  neutral  State  under- 
stands the  character  of  the  act  as  clearly  as  the  belligerent  and 
has  decided  in  advance  to  take  the  consequences  involved  in 
the  transaction.  Grown  wiser,  the  neutral  may  regret  its 
action  and  compensate  the  belligerent  or  submit  the  question 
of  liability  to  arbitration,  but  the  act  is  a State  act  and  gives 
the  belligerent  the  right  to  redress  by  diplomatic  means  or  by 
war.  Suppose  the  neutral  has  furnished  the  supplies,  but  that 
they  are  seized  by  one  belligerent  before  they  are  delivered  to 
the  other.  The  seizure  will  be  regarded  as  a “grave  incident,” 
public  feeling  will  be  aroused,  passion  inflamed,  and  the  neutral 
may  be  forced  or  at  least  encouraged  to  defend  by  force  its 
unlawful  act.  Therefore  the  convention  proscribes  any  trans- 
actions of  this  nature,  directly  or  indirectly  traceable  to  a 
neutral  State. 

Supplies  furnished  by  an  individual,  however,  are  susceptible 
of  different  treatment,  for  in  trading  in  these  commodities  he 
subjects  himself  to  the  risk  of  seizure  and  confiscation.  The 
act  is  not  so  criminal  or  wrong  in  itself  as  to  compel  the  neutral 
to  seize  the  commodity,  and  punish  the  act.  But  international 
law  allows  the  belligerent  to  intercept  the  commodity  and 
forfeit  it  if  delivery  to  the  other  belligerent  would  be  beneficial. 
Trade  in  contraband  is  not  unlawful,  nor  is  a neutral  bound 
to  prevent  its  subjects  or  citizens  from  proceeding  to  a block- 
aded port.  If  a neutral  were  obliged  to  scrutinize  every  pack- 
age leaving  its  territory,  it  would  assume  a very  heavy  respon- 
sibility. The  belligerent  has  a right  to  stop  such  commerce 
upon  the  high  seas,  and  as  he  is  himself  the  cause  of  the  war, 
he  should  not  shift  upon  the  neutral  the  burden  of  preventing 
such  trade.  The  following  paragraph  from  Professor  John 
Bassett  Moore  sets  the  matter  in  its  proper  light; 

Much  misapprehension  as  to  the  quality  of  the  act  of  supply- 
ing contraband  articles,  such  as  arms  and  munitions  of  war,  to 
the  parties  to  an  armed  conflict,  has  arisen  from  the  statement 
so  often  made  that  the  trade  in  contraband  is  lawful  and  not 
prohibited.  This  statement,  when  used  with  reference  to  the 
preventive  duties  of  neutral  governments,  is  quite  correct,  but 
if  applied  to  the  duties  of  individuals  it  is  quite  incorrect.  The 


630 


THE  HAGUE  PEACE  CONFEEENCES 


acts  which  individuals  are  forbidden  to  commit  and  the  acts 
which  neutral  governments  are  obliged  to  prevent  are  by  no 
means  the  same;  precisely  as  the  acts  which  the  neutral  govern- 
ment is  obliged  to  prevent  and  the  acts  which  it  is  forbidden  to 
commit  are  by  no  means  the  same.  The  supply  of  materials  of 
war,  such  as  arms  and  ammunition,  to  either  party  to  an  armed 
conflict,  although  neutral  governments  are  not  obliged  to  pre- 
vent it,  constitutes  on  the  part  of  the  individuals  who  engage 
in  it  a participation  in  hostilities,  and  as  such  is  confessedly  an 
unneutral  act.  Should  the  government  of  the  individual  itself 
supply  such  articles  it  would  clearly  depart  from  its  position  of 
neutrality.  The  private  citizen  undertakes  the  business  at  his 
own  risk,  and  against  this  risk  his  government  can  not  assure 
him  protection  without  making  itself  a party  to  his  unneutral  act. 

These  propositions  are  abundantly  established  by  authority.^ 

The  Conference  was  unwilling  to  forbid  the  individual  as  well 
as  the  State  from  furnishing  supplies  and  ammunition.  In 
Article  7 of  the  convention  it  is  expressly  stated  that  “ a neu- 
tral power  is  not  bound  to  prevent  the  export  or  transit,  for 
the  use  of  either  belligerent,  of  arms,  ammimitions,  or,  in 
general,  of  anything  which  could  be  of  any  use  to  an  army  or 
fleet,”  and  in  Article  7 of  the  convention  concerning  the  rights 
and  duties  of  neutral  powers  and  persons,  the  Conference 
recognized  in  the  same  terms  that  such  a duty  is  not  incum- 
bent upon  a neutral.  It  must  be  admitted,  therefore,  that  the 
presence  of  the  two  articles  in  precisely  the  same  wording  in 
two  different  conventions  of  one  and  the  same  Conference  can 
only  mean  that  the  neutral  should  not  be  taxed  with  responsi- 
bility for  the  act  of  its  citizen  or  subject,  which,  if  committed 
by  the  neutral,  is  admittedly  unlawful.  It  does  not  follow, 
however,  that  the  neutral  should  not  forbid  such  transactions. 
It  does  not  assume  an  international  obligation  to  do  so. 

To  continue  the  consideration  of  the  duty  imposed  upon  the 
neutral,  for  Article  7 may  be  regarded  as  an  aside,  the  difficult 
and  embarrassing  question  arises,  in  how  far  and  by  what 
means  should  the  neutral  prevent  the  violation  of  its  neutral- 
ity? It  would  be  absurd  to  say  that  the  neutral  is  bound  to 
prevent  the  violation  of  its  neutrality,  because  it  may  not  be 

‘ Moore’s  International  Law  Digest,  Vol.  VII,  p.  748. 


RIGHTS  AND  DUTIES  OF  NEUTRAL  POWERS 


631 


able  to  do  so  by  the  employment  of  its  land  and  naval  forces. 
On  the  other  hand,  the  duty  of  the  neutral  should  not  be 
limited  to  mere  protest  because  we  do  not  wish  condemnation 
but  prevention  to  be  had.  The  reason  of  the  thing  should  be  ex- 
amined, and  a neutral  State  should  be  held  quit  of  responsibility 
when  it  has  honestly  and  in  good  faith  used  the  means  not  merely 
at  its  disposal  but  the  means  which  a reasonable  person  would 
consider  adequate  to  prevent  the  violation  of  its  neutrality. 

The  first  rule  of  the  Treaty  of  Washington  expressed  the 
obligation  in  the  following  manner: 

A neutral  government  is  bound — 

First,  to  use  due  diligence  to  prevent  the  fitting  out,  arming, 
or  equipping,  within  its  jurisdiction,  of  any  vessel  which  it  has 
reasonable  ground  to  believe  is  intended  to  cruise  or  to  carry  on 
war  against  a Power  with  which  it  is  at  peace;  and  also  to  use 
like  diligence  to  prevent  the  departure  from  its  jurisdiction  of 
any  vessel  intended  to  cruise  or  carry  on  war  as  above,  such 
vessel  having  been  specially  adapted,  in  whole  or  in  part,  within 
such  jurisdiction,  to  warlike  use. 

The  Geneva  tribunal  gave  an  authoritative  interpretation 
of  the  expression  "due  diligence”  which,  to  quote  M.  Renault, 
has  become  celebrated  by  its  obscurity  since  its  solemn  inter- 
pretation. The  Geneva  tribunal  said  that 

the  "due  diligence”  referred  to  in  the  first  and  third  of  the  said 
rules  ought  to  be  exercised  by  neutral  governments  in  exact 
proportion  to  the  risks  to  which  either  of  the  belligerents  may 
be  exposed,  from  a failure  to  fulfill  the  obligations  of  neutrality 
on  their  part. 

The  Conference  accepted  the  principle  of  the  first  and  third 
rules  of  the  Treaty  of  Washington,  and  sought  by  a carefully 
drawn  article  to  define  the  duty  incumbent  upon  a neutral 
government 

to  employ  the  means  at  its  disposal  to  prevent  the  fitting  out  or 
arming  of  any  vessel  within  its  jurisdiction  which  it  has  reason 
to  believe  is  intended  to  cruise,  or  engage  in  hostile  operations, 
against  a Power  with  which  that  Government  is  at  peace.  It 
is  also  bound  to  display  the  same  vigilance  to  prevent  the 

‘ La  Denxieme  Conference  International  de  la  Paix,  1907,  Actes  et 
Documents,  Vol.  I,  p 302. 


632 


THE  HAGUE  PEACE  CONFERENCES 


departure  from  its  jurisdiction  of  any  vessel  intended  to  cruise, 
or  engage  in  hostile  operations,  which  had  been  adapted  entirely 
or  partly  within  the  said  jurisdiction  for  use  in' war.  (Article  8.) 

The  neutral  is  thus  obliged  to  prevent  the  fitting  out  of  the 
vessel  within  its  jurisdiction  by  “the  means  at  its  disposal,” 
and  to  use  the  same  viligance  to  prevent  its  departure.  It 
thus  appears  that  not  only  the  spirit  of  the  first  rule  of  Wash- 
ington is  adopted,  but  the  wording  of  the  article  seems  pecu- 
liarly clear,  skillful  and  happy. 

A superficial  examination  of  the  preceding  articles  shows 
that  the  restrictions  laid  upon  the  belligerent  are  in  order  to 
prevent  the  commission  of  a hostile  act  within  neutral  jurisdic- 
tion, and  the  duty  imposed  upon  the  neutral  is  not  merely 
to  prevent  this  but  if  done  to  undo  the  consequences.  It 
follows,  therefore,  that  the  access  of  the  belligerent  is  not  in 
itself  forbidden : it  is  the  act  done  after  entering  neutral  juris- 
diction that  condemns  the  belligerent  and  forces  the  neutral 
to  action.  Therefore,  it  would  seem  unnecessary  in  the  interest 
of  belligerent  and  neutral  to  forbid  all  access  to  the  territorial 
waters  and  jurisdiction  of  the  neutral,  because  the  presence  of 
the  belligerent  within  such  jurisdiction  is  consistent  with 
innocence,  and  a strict  observance  of  the  requirement  of  neu- 
trality. If,  however,  the  key-note  of  the  convention  be  borne 
in  mind,  namely,  the  sovereignty  of  the  neutral,  it  follows  that 
the  admission  or  the  nonadmission  of  a belligerent  depends 
upon  the  discretion  of  the  neutral,  and  it  is  for  the  neutral  to 
decide  whether  the  passage  through  its  territorial  waters  may 
jeopardize  its  neutrality.  Therefore,  a nile  which  would 
exclude  the  belligerent  wholly  from  neutral  waters  or  ports 
would  seem  to  be  not  only  inadvisable  but  harsh,  as  it  is  not  the 
presence  but  the  unlawful  conduct  of  the  belligerent  within 
neutral  jurisdiction  which  can  be  of  interest  to  the  other  bellig- 
erent and  neutral  powers  generally.  But  it  is  of  the  essence  of 
neutrality  that  the  determination  of  the  neutral  to  admit  a 
belligerent,  and  the  rules  and  regulations  issued  for  its  conduct 
should  apply  impartially  and  indiscriminately  to  the  other 
belligerent.  While  the  propriety  of  admission  is  a question 


RIGHTS  AND  DUTIES  OF  NEUTRAL  POWERS 


633 


for  the  neutral,  still  the  presumption  is  clearly  against  admis- 
sion of  an  enemy  vessel  which  has  “failed  to  conform  to  the 
orders  and  regulation  made  by  it  or  which  has  violated  its 
neutrality;”  and  such  are  the  requirements  of  Article  9. 

The  Conference,  however,  felt  a little  delicacy  about  the 
admissibility  of  enemy  vessels  and  their  prizes,  and  deemed 
it  inadvisable  to  dismiss  the  matter  with  the  statement  that 
the  rules  and  regulations  concerning  admission  should  apply 
to  both  belligerents,  and  that  a belligerent  which  had  violated 
neutrality  might  be  refused  admission.  It  therefore  stated  in 
Article  10  that  neutrality  is  not  violated  by  the  mere  passage 
of  men-of-war  and  their  prizes  through  territorial  waters.  In 
the  same  way  that  a neutral  can  permit  the  belligerent  to 
enter  and  pass  through  its  territorial  waters  without  violat- 
ing neutrality,  the  neutral  can  assuredly  allow  the  belligerent 
to  make  use  of  its  licensed  pilots  without  raising  the  question  of 
neutrality ; for  if  the  man-of-war  be  permitted  to  enter,  it  would 
seem  that  the  neutral  may  well  be  permitted  to  supply  it 
with  the  means  of  safety  during  the  sojourn  in  its  waters. 
The  language  of  the  convention,  however,  is  permissive,  the 
neutral  “may”  allow  belligerent  warships  to  employ  his 
licensed  pilots;  it  is  not  compelled  to  do  so.  Notwithstanding 
the  permission  accorded  in  the  text  which  as  a matter  of  fact 
is  a self-evident  and  natural  consequence  of  sovereignty, 
it  is  safe  to  assume  that  the  neutral  should  satisfy  itself  that 
the  purpose  of  the  belligerent  is  innocent,  and  that  the  employ- 
ment of  the  pilot  will  be  in  no  way  connected  directly  or 
indirectly  with  an  act  of  war. 

The  belligerent  being  thus  permitted  to  enter  and  pass 
through  territorial  waters  of  the  neutral,  and  with  its  consent 
to  employ  its  licensed  pilots,  the  question  arises  naturally 
whether  the  belligerent  may  remain  in  territorial  waters  with- 
out making  them  the  base  of  operations  and  thus  compromising 
the  neutrality  of  the  port.  This  question  gave  rise  to  a long 
and  animated  discussion,  for  the  right  of  a belligerent  to 
remain  cannot  be  unlimited.  It  must  depend  upon  the  voli- 
tion of  the  belligerent,  upon  the  determination  of  the  neutral, 


634 


THE  HAGUE  PEACE  CONFERENCES 


or  upon  the  practice  of  the  Community  of  Nations.  If  it 
depend  upon  the  belligerent,  the  port  of  entry  becomes  a port 
of  jefuge  within  which  he  is  secure  from  attack,  and  from  which 
he  may  issue  to  execute  a warlike  intent.  If  the  length  of 
sojourn  depends  solely  upon  the  neutral  it  may  vary  by 
friendship  for  the  belligerent,  or  be  influenced  by  prejudice 
against  its  opponent  so  that  there  is  danger  to  fear  that  the 
time  accorded  may  bear  a definite  relation  to  the  real  or  sup- 
posed strength  of  the  neutral.  This  is  tantamount  to  saying 
that  there  is  no  rule  and  thus  there  is  a lack  of  certainty;  for 
neither  the  belligerent  nor  the  neutral  nations  may  know  in 
advance  the  content  of  a rule  which  depends  upon  the  circum- 
stances of  a particular  case.  The  practice  of  the  Community 
of  Nations  would,  therefore,  be  a safer  guide  and  the  tendency 
at  the  present  day  undoubtedly  is,  while  permitting  the  bellig- 
erent to  enter,  to  hmit  the  sojourn  to  24  hours.  It  is  supposed 
that  the  belligerent  can  accomplish  a legitimate  and  permissi- 
ble purpose  within  such  period  of  time,  may  repair  traveling 
damage,  procure  supplies  necessary  for  the  peaceful  prosecu- 
tion of  the  voyage,  and  load  a sufficient  amount  of  coal  to 
enable  it  to  proceed.  The  partisans  of  the  24  hour  rule  insisted 
that  it  should  be  prescribed  by  the  convention  and  thus  made 
a constituent  part  of  international  law.  Its  opponents  were 
disposed  to  recognize  the  reasonableness  of  the  rule  in  general, 
but  to  question  its  applicability  on  certain  occasions.  The 
purpose  of  the  rule  is  to  prevent  a belligerent  from  making  a 
neutral  port  the  basis  of  hostile  operations.  In  the  neighbor- 
hood of  the  enemy  the  rule  might  well  be  applied,  but  suppose 
the  port  into  which  a belligerent  entered  was  far  removed  from 
the  scene  of  hostilities.  The  reason  of  the  rule  failing,  the 
rule  itself  should  cease.  For  example,  in  the  case  of  a war 
between  France  and  Germany  (which  God  forbid !)  a French  or 
German  cruiser  might  well  remain  more  than  24  hours  in 
Buenos  Aires,  and  in  a war  between  Germany  and  Great 
Britain,  either  belligerent  might  prolong  its  stay  in  Rio  de 
Janeiro  beyond  sunset  to  sunset.  The  answer  to  this  proposi- 
tion presented  by  Germany  was  that  the  rule  should  be  so  pre- 


RIGHTS  AND  DUTIES  OF  NEUTRAL  POWERS  635 

cise  that  belligerent  and  neutral  might  know  in  advance  its  duty, 
irrespective  of  the  nearness  or  remoteness  of  the  naval 
operations.  If  we  bear  in  mind  the  sovereignty  of  the  neutral 
nation,  it  is  possible  to  compromise  the  two  views  by  prescribing 
in  default  of  special  legislation  to  the  contrary  the  general  rule 
of  24  hours.  It  may  be  urged  that  this  is  a disposition  of  the 
question  which  settles  nothing,  because  the  States  do  not 
definitively  hmit  the  enemy  vessel  to  24  hours,  because  the 
neutral  nation  can  by  local  legislation  lengthen  the  period . The 
objection  is  well  founded,  but  the  rule  is  not  so  elastic  as 
might  be  imagined;  for  it  limits  the  sojourn  to  24  hours,  and  to 
prolong  this  period  it  requires  definite  affirmative  action  of  the 
neutral.  In  the  absence  of  such  action,  the  rule  is  rigid,  and  it 
is  not  to  be  presumed  that  a neutral  will  capriciously  extend  the 
period.  Indeed  the  very  existence  of  the  provision  is  a guar- 
antee of  its  correctness  and  its  presence  in  a convention  ques- 
tions the  advisability  of  its  extension.  A powerful  neutral 
may  not  care  to  lengthen  the  period,  a weak  neutral  is  strength- 
ened by  the  provision.  Owing  to  the  importance  of  this 
stipulation,  I quote  the  article : 

In  the  absence  of  special  provisions  to  the  contrary  in  the 
legislation  of  a neutral  Power,  belligerent  warships  are  not 
permitted  to  remain  in  the  ports,  roadsteads,  or  territorial 
waters  of  the  said  Power  for  more  than  24  hours,  except  in 
the  cases  covered  by  the  present  Convention.  (Article  12.) 

For  a like  reason  I translate  the  comment  of  M.  Renault  in 
his  official  report: 

The  rule  admitted  by  the  majority  is,  then,  that  in  default  of 
special  provisions  in  the  legislation  of  the  neutral  State,  bellig- 
erent vessels  are  forbidden  to  remain  in  the  harbors,  and  road- 
steads, or  in  the  territorial  waters  of  this  State  longer  than  24 
hours.  The  idea  is  that  a precise  rule  is  indispensable.  Each 
State  is  left  free  to  establish  it.  In  default  of  its  establishment, 
the  convention  fixed  the  period  of  24  hours.  ^ 


‘ M.  Renault’s  Report  to  the  Conference,  La  Deuxi^me  Conference  Inter- 
nationale de  la  Paix,  1907,  Actes  et  Documents,  Vol.  I,  p.  308.) 


636 


THE  HAGUE  PEACE  CONFERENCES 


It  will  be  noted  that  no  distinction  is  made  between  the 
simple  entry  and  sojourn  en  route  to  the  theater  of  hostilities, 
and  the  use  of  the  port  as  a refuge  from  defeat.  A regulation 
of  the  local  legislation,  it  is  presumed,  would  apply  to  each 
situation.  There  can  be  little  doubt,  however,  that  a neutral 
would  distinguish  the  two  cases  even  although  there  were  but  a 
single  law  applicable  to  both  situations;  for  furnishing  refuge 
to  a defeated  belligerent  and  protecting  its  vessel  from  cap- 
ture would  question  the  good  faith  of  the  neutral.  If  the 
vessel  appeared  in  a damaged  condition,  it  is  certain  that  the 
neutral  would  not  permit  it  to  be  repaired  for  a hostile  purpose, 
and  if  it  did  not  depart  within  24  hours,  recent  practice  suggests, 
indeed  makes  it  a certainty,  that  the  vessel  and  crew  would  be 
interned.  This  subject,  however,  need  not  detain  us  at  pres- 
ent for  it  will  be  discussed  in  connection  with  Article  17. 

But  the  same  question  may  present  itself  in  a different  form, 
namely,  the  belligerent  man-of-war  may  have  entered  the  har- 
bor in  time  of  peace  and  may  be  lying  at  anchor  when  war  is 
declared.  It  thus  becomes  a belligerent  and  as  regards  the 
neutral  the  question  arises,  “How  long  shall  it  be  permitted  to 
enjoy  the  hospitality  of  the  neutral?”  Should  not  the  rule 
of  the  preceding  article  be  applied?  It  is  general  in  its  nature, 
regulating  the  sojourn  of  the  belligerent,  and  as  the  vessel 
falls  within  the  definition,  it  is  difficult  to  see  why  the  rule 
should  not  be  applied.  The  Conference  so  considered  it,  and 
declared  it  to  be  the  duty  of  the  neutral  to  notify  the  belliger- 
ent to  leave  within  the  24  hours  after  the  declaration  of  war 
“or  within  the  time  prescribed  by  local  regulations.”  (Arti- 
cle 13.) 

But  the  convention  while  prescribing  the  rule  yet  tempers 
the  wind  to  the  shorn  lamb.  The  neutral  must  notify  the 
belligerent  to  leave  within  24  hours.  The  belligerent  should 
recognize  the  sovereign  command  and  withdraw,  but  duty 
presupposes  possibility.  If  the  vessel  be  damaged  so  that  it 
cannot  put  to  sea,  or  if  the  sea  be  stormy  so  that  the  vessel 
cannot  proceed  without  danger,  the  application  of  the  24 
hour  rule  would  work  a hardship  without  any  corresponding 


RIGHTS  AND  DUTIES  OF  NEUTRAL  POWERS 


637 


benefit.  Therefore,  Article  14  expressly  prolongs  the  sojourn 
for  these  two  reasons,  with  the  additional  proviso  that  the 
vessel  must  depart  as  soon  as  the  cause  of  delay  is  at  an  end. 

The  purpose  of  the  convention  is  to  preserve  neutrality, 
and  as  merchant  vessels  take  no  part  in  the  war,  they  are  not 
included.  Their  conduct  is  peaceable;  their  intent  is  gain, 
not  war.  For  this  reason,  indeed  for  a higher  reason,  vessels 
of  war  devoted  exclusively  to  religious,  scientific,  or  philan- 
thropic purposes  are  not  affected  by  the  requirements  to 
depart  within  24  hours.  The  mere  statement  amounts  in  this 
case  to  a demonstration.  A single  illustration  will  suffice. 
A belligerent  hospital  ship  would  be  exempt  from  the  regula- 
tion. 

But  it  may  happen  that  several  belligerent  men-of-war  are 
within  a neutral  harbor  at  the  outbreak  of  war.  It  becomes 
the  duty  of  the  neutral  to  warn  them  to  withdraw.  If 
several  vessels  belonging  to  the  same  belligerent  enter,  they 
must  likewise  be  informed  of  the  rule,  but,  while  one  vessel  may 
be  permitted  to  remain  the  full  24  hours,  the  presence  of  two 
vessels  may  be  embarrassing,  whereas  more  than  three  might 
endanger  the  neutrality  of  the  port.  Still  the  neutral,  if  power- 
ful, may  easily  meet  its  obligations  and  guarantee  its  neutral- 
ity. It  is  a question  after  all  for  a sovereign  State  to  determine, 
but  it  is  of  interest,  not  merely  to  the  State,  but  to  the  Community 
of  Nations.  Therefore,  the  convention  specifies  that  not  more 
than  three  war  vessels  of  a belligerent  may  be  in  a neutral 
port  at  one  and  the  same  time,  in  “default  of  special  pro- 
vision to  the  contrary  in  the  legislation  of  the  neutral  power.” 
(Article  15.) 

But  the  problem  may  be  further  complicated  by  the  presence 
of  warships  of  the  two  belligerents.  The  neutral  might  well 
be  happy  with  either  were  the  other  away,  but  the  pres- 
ence of  both  is  distinctly  embarrassing.  Article  2 of  the  con- 
vention expressly  forbids  every  act  of  hostility  including 
capture  within  neutral  waters,  and  the  danger  is  as  evident 
as  it  is  real  that  the  belligerent  may  engage  in  unneutral  con- 
duct. Battleships  are  inanimate  things,  masses  of  iron  and 


638 


THE  HAGUE  PEACE  CONFERENCES 


steel,  but  the  commanders  are  men  not  unlikely  to  be  influ- 
enced by  passion  and  led  astray  by  the  supposed  interests  of 
their  country.  Bearing  in  mind  the  provisions  of  the  previous 
article,  namely,  that  three  war  vessels  of  a belligerent  may  be  in 
the  harbor  at  one  and  the  same  time,  it  follows  that  there 
may  be  a fleet  of  six  war  vessels,  and  it  is  clearly  in  the  interest 
of  the  neutral,  however  powerful,  to  reduce  the  number  of 
vessels  in  its  harbor  or  roadstead.  Should  the  vessels  be 
warned  to  depart  simultaneously  a naval  battle  would  be 
imminent  the  moment  the  vessels  reached  the  high  seas,  and 
as  modern  guns  have  a long  range,  it  is  possible,  if  not  proba- 
ble, that  the  neutral  might  suffer  from  the  contest  waged  so 
near  its  shores.  It  is,  therefore,  to  the  advantage  of  the  neu- 
tral that  the  vessels  should  leave  its  port  at  different  times  so 
that  the  chance  of  combat  within  its  waters  or  near  its  shores 
be  lessened.  The  convention,  therefore,  prescribes  (Article 
16)  that  ‘‘a  period  of  not  less  than  24  hours  must  elapse 
between  the  departure  of  the  ship  belonging  to  one  belligerent 
and  the  departure  of  a ship  belonging  to  the  other.” 

The  order  of  departure  caused  no  little  discussion  and  four 
different  systems  had  their  partisans.  First,  the  neutral 
State  should  regulate  the  matter  of  departure;  second,  the 
priority  of  demand  (the  Russian  proposition)  was  taken  into 
consideration;  third,  the  weaker  vessel  should  leave  first,  so 
that  it  might  escape  and  not  wait  for  its  enemy  to  come  out; 
fourth,  the  order  of  arrival  should  determine  the  order  of 
departure.  The  fourth  method  commended  itself  to  the  Con- 
ference, so  that  the  order  of  departure  is  determined  by  the 
order  of  arrival,  but  this  rule  cannot  be  so  absolute  as  to 
admit  of  no  exception,  for  it  may  be  that  the  first  arrival  is 
unseaworthy  and  until  some  repairs  are  made  cannot  put 
to  sea  without  danger.  The  convention  permits  the  excep- 
tion where  the  prolongation  of  the  legal  period  of  sojourning 
is  admitted. 

The  immunity  of  private  property  on  the  high  seas  is  still 
a program,  not  the  practice  of  nations,  and  it  may  be  that  a 
merchant  vessel  belonging  to  one  of  the  belligerents  lies  peace- 


EIGHTS  AND  DUTIES  OP  NEUTKAL  POWERS 


639 


fully  at  anchor  in  the  harbor  of  a neutral.  The  merchantman 
may  not  wish  to  put  to  sea  and  is  not  compelled  to.  Should, 
however,  its  captain  determine  to  leave  port,  he  would  be 
exposed  to  the  grave  danger  of  capture  if  an  enemy  war  vessel 
insisted  on  accompanying  him  or  following  shortly  in  his 
wake.  Therefore,  the  convention  provides  that  a man-of-war 
cannot  leave  the  harbor  until  24  hours  after  the  departure  of 
an  enemy  merchantman.  The  convention  does  not  save  the 
merchantman  against  his  will:  it  is  permitted  to  depart, 
but  the  convention,  by  retaining  the  belligerent  man-of-war, 
gives  the  merchantman  a start  and  a chance  to  escape  if 
necessity  obliges  it  to  put  to  sea.  (Article  16.) 

In  Article  14  a belligerent  is  permitted  to  prolong  its 
sojourn  beyond  the  period  of  24  hours  on  account  of  damage 
or  stress  of  weather,  and  in  Article  16  just  discussed  the 
possibility  of  a delay  is  contemplated.  In  Article  17  the  sub- 
ject of  damage  and  the  repairs  permitted  to  an  enemy  vessel 
are  considered  and  determined.  The  question  is  one  of  great 
delicacy,  because  if  a belligerent  be  permitted  to  make  exten- 
sive repairs,  the  charge  is  not  without  foundation  that  the 
neutral  territory  is  being  used  as  a basis  of  naval  operations, 
for  the  repairs  may  be  of  such  a nature  as  to  render  a wreck 
fit  for  active  service.  As  the  vessel  cannot  remain  more  than 
24  hours  in  the  port,  unless  expressly  permitted  by  local  legis- 
lation, it  follows  that  the  repairs  contemplated  are  only  those 
absolutely  necessary  to  render  the  vessel  seaworthy.  It  may 
well  be  that  what  may  seem  necessary  to  the  belligerent  may 
seem  a violation  of  neutrality  to  the  neutral.  Therefore,  in 
case  of  controversy  the  neutral  shall  decide  what  repairs  are 
necessary  and  these  must  be  carried  out  with  the  least  possible 
delay.  This  provision  is  declarator}"  of  international  practice. 
For  example,  when  during  the  recent  Russo-Japanese  War 
Admiral  Enguist  and  his  squadron  sought  refuge  at  Manila, 
after  the  disastrous  battle  of  the  Straits,  the  Secretary  of 
War,  at  the  direction  of  the  President,  telegraphed  the  governor 
of  the  Philippine  Islands  on  June  5,  1904,  as  follows: 


640 


THE  HAGUE  PEACE  CONEEKENCES 


Advise  Russian  admiral  that  as  his  ships  are  suffering  from 
damages  due  to  battle,  and  our  policy  is  to  restrict  all  operations 
of  belligerents  in  neutral  ports,  the  President  cannot  consent  to 
any  repairs  unless  the  ships  are  interned  at  Manila  until  the  close 
of  hostilities.^ 

In  the  case  of  the  cruiser  Lena  which  arrived  at  San  Fran- 
cisco in  September,  1904,  Mr.  Adee,  acting  Secretary  of  State, 
advised  the  Russian  ambassador  that 

If  repaired,  only  such  bare  repairs  can  be  allowed  as  may  be 
necessary  for  seaworthiness  and  for  taking  her  back  to  nearest 
home  port,  and  even  such  repairs  can  be  permitted  only  on  con- 
dition that  they  do  not  prove  too  extensive.^ 

The  interpretation  therefore  of  the  term  “repairs”  cannot 
be  doubtful.  They  must  be  of  such  a nature  as  to  make  the 
vessel  seaworthy;  they  may  not  render  it  capable  of  battle, 
for  by  permitting  the  vessel  to  remain  and  to  fit  itself  for  active 
service  the  neutral  would  insensibly  be  permitting  its  port  to  be 
used  as  a basis  of  hostile  operations.  This  is  forbidden  by 
international  law.  For  example,  the  second  rule  of  the  Treaty 
of  Washington  provides  that 

a neutral  government  is  bound  not  to  permit  or  suffer  either 
belligerent  to  make  use  of  its  ports  or  waters  as  the  basis  of  naval 
operations  against  the  other,  or  for  the  purpose  of  the  renewal  or 
augmentation  of  military  supplies  or  arms  or  the  recruitment  of 
men. 

The  Conference  accepted  without  discussion  the  binding  effect 
of  the  rule  in  question,  but,  as  on  a previous  occasion,  expressed 
it  in  terms  of  the  belligerent  instead  of  the  neutral.  The 
belligerent  may  not  make  use  of  the  ports;  if  it  does  make  use 
of  neutral  territory,  it  not  only  violates  neutral  sovereignty 
but  renders  the  neutral  responsible  to  the  other  belligerent. 
Therefore,  the  provision  creates  at  once  prohibition  against 
the  belligerent  and  imposes  the  duty  to  prevent  the  forbidden 


' Naval  War  College,  Situations  of  1905,  p.  168;  Moore,  International 
Law  Digest,  Vol.  VII,  p.  995,  and  documents  there  cited. 

^ United  States  Foreign  Relations,  1904,  785,  790;  Moore,  International 
Law  Digest,  Vol.  VII,  pp.  999-1000. 


RIGHTS  AND  DUTIES  OF  NEUTRAL  POWERS 


641 


act.  The  text,  however,  speaks  for  itself  and  should  not  be 
presented  in  a paraphrase.  It  is  as  follows: 

Belligerent  warships  may  not  make  use  of  neutral  ports, 
roadsteads,  or  territorial  waters  for  replenishing  or  increasing 
their  supplies  of  war  material  or  their  armament,  or  for  com- 
pleting their  crews.  (Article  18.) 

It  appears,  therefore,  that  in  the  absence  of  special  circum- 
stances the  belligerent  shall  not  prolong  its  stay  beyond  24 
hours;  that  it  can  only  make  repairs  necessary  to  render  the 
vessel  seaworthy;  that  it  shall  not  make  use  of  neutral  juris- 
diction to  replenish  or  increase  military  supplies,  armaments, 
or  to  add  to  its  crews.  But  improper  as  all  these  actions 
are,  there  are  two  matters  of  greater,  indeed  of  fundamental 
importance,  which  the  belligerent  may  not  disregard.  With- 
out food  the  men  cannot  fight,  without  coal  or  fuel  the  vessel 
cannot  operate.  An  empty  stomach  and  an  empty  bunker 
put  the  vessel  out  of  commission.  The  desire  of  one  belliger- 
ent is  to  obtain  an  ample  supply  of  provisions  and  to  fill  its 
bunkers  to  their  utmost  capacity.  The  desire  of  the  other 
belligerent  naturally  is  that  its  enemy  may  obtain  neither  provi- 
sions nor  fuel . What  attitude  should  the  neutral  take  ? Viewed 
from  his  standpoint  the  sale  of  provisions  and  fuel  would  be 
profitable  to  its  citizens  or  subjects,  but  might  involve  a 
violation  of  neutrality.  Therefore,  a reasonable  and  workable 
rule  would  seem  to  be  to  permit  the  belligerent  to  obtain  the 
amount  of  supplies  required  by  the  vessel  in  time  of  peace.  In 
this  way  the  standard  of  peace,  not  the  standard  of  war,  is 
adopted  as  the  measure.  The  question  of  fuel  is  really  more 
complicated,  because  the  provisions  are  necessarj'^  for  the  sup- 
port of  the  crew  and  therefore  susceptible  of  innocent  use. 
They  do  not  of  themselves  necessarily  and  directly  contribute 
to  the  warlike  purposes.  On  the  contrary,  fuel  is  necessary 
to  enable  the  vessel  to  continue  its  journey  and  the  progress  of 
the  vessel  and  the  part  it  may  take  in  hostilities  depends 
upon  the  possession  of  a sufficient  quantity  of  fuel.  What 
quantity  therefore  should  be  supplied?  From  a financial 
standpoint,  the  neutral  would  doubtless  be  willing  to  dispose 


642 


THE  HAGUE  PEACE  CONFERENCES 


of  his  surplus  stores,  but  by  so  doing  he  would  be  adding  directly 
to  the  fighting  strength  of  the  one  or  the  other  belligerent. 
The  doctrine  of  impartiality  requires  that  if  the  neutral 
supplies  one  he  must  supply  the  other  belligerent,  and  the 
neutral  nation  thus  finds  itself  as  the  basis  of  operations,  not 
only  of  one,  but  of  the  other  belligerent.  The  interest  of  one 
belligerent  would  insist  that  no  fuel  be  furnished.  As  previ- 
ously stated  the  interest  of  the  neutral  is  that  a large  supply 
be  furnished.  A compromise  is  inevitable  and  it  would  seem 
that  the  Conference  found  the  golden  mean  when  it  provided 
that  vessels  may  only  ship  sufficient  fuel  to  enable  them  to 
reach  the  nearest  port  in  their  own  country.  It  may  be  that 
the  vessel  is  far  from  home  and  that  the  enemy  is  near,  and 
there  is  no  guarantee  that  the  vessel  upon  receipt  of  the  fuel 
will  really  return  to  the  home  port.  The  neutral,  however, 
is  sovereign  and  may  refuse  to  comply  with  the  request  of 
the  belligerent.  The  belligerent  is,  however,  it  would  seem, 
limited  to  the  amount  necessary  for  the  particular  purpose, 
unless  neutral  countries  have  adopted  the  full  bunker  as  the 
unit  of  supply  to  be  furnished  to  belligerent  vessels.  As  the 
neutral  is  competent  to  determine  the  matter,  there  seems  to 
be  no  sufficient  reason  why  the  belligerent  should  not  be 
permitted  to  avail  itself  of  the  local  legislation.  It  must  be 
admitted,  however,  that  the  solution  of  the  difficulty  is  a com- 
promise, for  supplying  food  and  fuel  to  belligerents  permits 
them  to  carry  on  war.  From  this  point  of  view  the  neutral 
becomes  a party  to  the  continuance  of  the  war.  Strict  and 
progressive  neutrality  might  well  forbid  the  neutral  to  supply 
provisions  and  fuel  to  be  consumed  outside  of  its  territorial 
jurisdiction.  But  the  proceedings  of  the  conference  clearly 
show  that  the  nations  are  not  ready  to  adopt  this  rigid  and 
exacting  standard  of  neutrality.  They  would  no  doubt  be 
vdlling  to  starve  their  enemy  and  keep  him  in  port,  but  the 
fear  that  they  may  be  one  day  in  war  and  stand  in  need  of 
provisions  gives  them  pause. 

The  compromise,  therefore,  will  be  regarded  unfavorably 
by  those  who  insist  that  neutrals  shall  abstain  from  all  con- 


RIGHTS  AND  DUTIES  OF  NEUTRAL  POWERS 


643 


nection  with  the  war  and  its  continuance,  whereas  the  pro- 
visions will  be  more  favorably  regarded  by  those  nations  which 
heretofore  have  been  lax  in  neutrality.  It  must  be  said, 
however,  that  the  standard  is  reasonable  in  itself,  and  that  its 
adoption  is  a matter  of  no  inconsiderable  moment.  Many  of 
the  nations  were  anxious  to  prolong  their  sojourn  in  a neutral 
port  so  as  to  be  able  to  load  the  quantity  of  fuel  allowed 
them.  For  this  reason  there  is  an  express  stipulation  that  if 
local  legislation  does  not  permit  the  belligerent  to  receive 
fuel  until  24  hours  after  arrival,  the  period  of  their  sojourn  is 
prolonged  24  hours.  It  may  be  said,  finally,  that  the  article 
regulating  this  important  question  of  food  and  fuel  provoked 
long  and  spirited  discussion  and  was  regarded  in  many  respects 
as  the  crux  of  the  convention.  The  importance  of  the  article 
requires  its  quotation: 

Belligerent  warships  may  only  revictual  in  neutral  ports  or 
roadsteads  to  bring  up  their  supplies  to  the  peace  standard. 

Similarly  these  vessels  may  only  ship  sufficient  fuel  to  enable 
them  to  reach  the  nearest  port  in  their  own  country.  They 
may,  on  the  other  hand,  fill  up  their  bunkers  built  to  carry  fuel, 
when  in  neutral  countries  which  have  adopted  this  method  of 
determining  the  amount  of  fuel  to  be  supplied. 

If,  in  accordance  with  the  law  of  the  neutral  Power,  the 
ships  are  not  supplied  with  coal  within  24  hours  of  their 
arrival,  the  permissible  duration  of  their  stay  is  extended  by 
24  hours.  (Article  19.) 

But  supposing  that  the  vessel  has  been  permitted  a supply  of 
fuel  sufficient  to  enable  it  to  reach  the  home  port  or  has  filled 
its  bunkers  in  accordance  with  local  legislation,  the  question 
arises:  “Should  the  vessel  be  permitted  to  return  to  the 
neutral  port  and  repeat  the  process?”  In  receiving  the  provi- 
sions and  fuel  permitted  by  Article  19,  the  vessel  did  not  bind 
itself  to  return  to  the  home  port.  The  destination  is  the 
measure  of  supply.  The  vessel  may  have  proceeded  but  a 
short  way  until  it  met  the  enemy,  or  instead  of  proceeding  to 
the  home  port  it  may  have  sought  the  enemy.  If  it  should 
return  to  the  neutral  port  within  a short  period,  should  the 
neutral  repeat  the  process?  International  practice  answers 


644 


THE  HAGUE  PEACE  CONFERENCES 


the  question  in  the  negative,  and  the  convention  wisely,  rea- 
sonably, and  justly  decided  that  vessels  receiving  fuel  within 
a neutral  port  can  not  obtain  a supply  of  food  or  fuel  within 
three  months  from  a port  of  the  same  neutral  power. 

The  convention  deals  with  another  group  of  questions  likely 
to  present  themselves  and  determines  the  rules  to  be  apphed 
in  such  cases.  A question  much  discussed  at  the  Conference, 
but  upon  which  no  agreement  was  reached,  related  to  the 
destruction  of  prizes  taken  at  sea.  It  does  not  concern  the 
neutral  if  a belligerent  destroys  an  enemy  merchant  vessel, 
unless  it  be  loaded  in  whole  or  part  with  neutral  cargo.  It  is, 
however,  interested  in  the  treatment  accorded  to  neutral 
prizes.  The  situation  being  different,  it  may  well  be  that  the 
practice  should  differ.  Capture  of  enemy  property  vests  the 
title  immediately  in  the  captor,  whereas  the  title  to  neutral 
property  is  only  passed  by  a decision  of  a competent  prize 
court.  If,  therefore,  an  enemy-prize  be  sunk  at  sea  the 
captor  is  practically  sinking  or  destroying  his  own  property; 
whereas  if  he  sink  a neutral  prize  he  may  be  destroying  prop- 
erty which  either  is  not  his  or  which  has  not  been  adjudged 
to  be  his.  Should  the  validity  of  the  capture  be  sustained, 
the  neutral  has  no  complaint.  Should,  however,  the  capture 
be  set  aside  the  neutral  has  a right  to  indemnification.  The 
destruction  of  the  neutral  prize  may  interfere  with  the  evi- 
dence to  be  submitted  to  the  Prize  Court,  and  therefore  is 
objectionable.  If  the  property  is  destroyed  without  right 
the  action  is  wanton.  The  neutral,  therefore,  is  interested  in 
the  safety  of  the  prize.  The  prize  should  be  taken  by  the 
captor  to  a home  port  in  order  to  have  the  validity  of  the 
capture  passed  upon  by  a Prize  Court  of  his  nation.  The 
neutral  does  not  look  with  favor  upon  the  entry  of  prize  within 
its  jurisdiction,  and  while  Article  21  of  the  convention  does  not 
in  express  words  permit  the  prize  to  enter  freely,  it  recognizes 
that  “ miseaworthiness,  stress  of  weather  or  want  of  fuel  or 
provisions,”  may  justify  entrance.  The  reason  for  this  is 
simple,  namely,  that  an  entry  in  such  a case  cannot  be  con- 
sidered as  the  result  of  design  or  premeditation.  It  is  in  its 


RIGHTS  AND  DUTIES  OF  NEUTRAL  POWERS 


645 


nature  accidental  and  necessary.  However,  the  neutral  port 
must  not  be  made  a port  of  entry  for  prize,  and  the  prize 
entered  must  not  remain  permanently.  Otherwise,  the  neu- 
tral port  becomes  a basis  of  hostile  operations.  Therefore, 
the  prize  must  leave  as  soon  as  the  circumstances  which  justi- 
fied its  entry  are  at  an  end.  If  it  does  not,  the  neutral  power 

must  order  it  to  leave  at  once;  should  it  fail  to  obey,  the  neu- 
tral power  must  employ  the  means  at  its  disposal  to  release 
it  with  its  officers  and  crew  and  to  intern  the  prize  crew. 
/'Article  21.) 

The  reason  for  this  action  is  simple.  The  prize  was  only 
permitted  to  enter  by  reason  of  the  existence  of  certain  circum- 
stances. The  moment  these  cease  to  exist  the  presence  of 
the  prize  is  unlawful.  In  the  language  of  law,  it  is  a trespasser 
and  is  treated  accordingly. 

In  the  absence  of  what  may  be  called  attenuating  circum- 
stances, namely  unseaworthiness,  stress  of  weather  or  want 
of  fuel  or  provisions,  the  prize  cannot  enter  neutral  jurisdiction. 
If  it  does,  it  violates  neutrality  and  the  express  provision  of 
Article  22  which  requires  that  a neutral  power  must  release  a 
prize  brought  into  one  of  its  ports  under  any  other  circum- 
stances than  those  just  specified. 

The  provisions  of  Article  23  are  seemingly  at  variance  with 
the  two  previous  articles;  for  a neutral  power  is  authorized 
to  allow  prizes  to  enter  its  ports  and  roadsteads  with  or  with- 
out convoy,  to  await  the  decision  of  a Prize  Court  of  the  captor 
country.  The  advisability  of  this  provision  is  questionable. 
If  a belligerent  cannot  conduct  the  prize  to  its  home  country, 
the  prize  should  be  released.  A neutral  port  should  not  be 
used  as  a substitute.  Whatever  language  be  used,  the  fact 
remains  that  the  neutral  port  serving  as  a basis  of  hostile 
operations  for  the  capture  of  a prize  commits  a hostile  act, 
and  the  storing  of  a prize  in  a neutral  port  is  in  aid  of  a hostile 
act.  This  disposition  of  prize  property  is  unsatisfactory. 
From  another  point  of  view  there  is,  however,  much  to  be 
said  for  it.  If  the  belligerent  has  the  right  to  destroy  a neutral 
prize  which  cannot  be  conducted  to  the  home  country  for 


646 


THE  HAGUE  PEACE  CONFERENCES 


adjudication,  the  privilege  of  taking  the  prize  into  a neutral 
port  and  leaving  it  there  pending  adjudication  is  no  slight 
protection  to  the  prize,  and  may  prevent  a resort  to  the  harsh 
method  of  destruction.  Not  only  is  the  vessel  saved  but  the 
evidence  upon  which  the  validity  of  the  act  depends  is  secure 
and  the  ends  of  justice  are  advanced. 

From  this  point  of  view  the  article  may  prove  beneficial  but 
only  upon  the  supposition  that  the  belligerent  possesses  the 
right  to  destroy  neutral  prize.  If  he  does  not  possess  the  right 
to  sink  the  prize  and  if  it  cannot  be  taken  into  neutral  port 
the  prize  would  have  to  be  released.  It  should  be  said,  too, 
that  the  article  is  permissive,  not  mandatory.  The  neutral 
may  permit  its  entrance,  it  does  not  need  to  do  so. 

Passing  now  from  the  group  of  articles  dealing  with  prize 
in  relation  to  neutrals,  the  convention  considers  the  measures 
to  be  taken  by  a neutral  power  against  a belligerent  vessel  not 
leaving  the  port  when  ordered.  In  such  a case  the  ship  clearly 
forfeits  its  claim  to  protection,  for  by  violating  neutrality 
it  becomes  a trespasser  and  may  be  treated  as  such,  and 
rendered  incapable  to  take  the  sea  during  the  war.  A vessel 
which  violates  the  neutrality  of  the  port  and  refuses  to  depart 
does  not  deserve  to  be  at  large.  The  officers  and  crew  should 
share  the  fate  of  the  ship  to  the  extent  that  they  are  detained. 
As  they  were  the  cause  of  the  vessel’s  misfortune,  it  is  only 
proper  that  they  should  not  be  set  at  liberty.  It  is  a matter 
of  detail  whether  they  be  left  in  the  ship,  kept  on  another 
vessel  or  on  land.  It  is,  however,  an  important  matter  that 
their  liberty  of  action  be  controlled  by  the  neutral.  The  text 
of  Article  24  is  clear  without  further  comment: 

If,  notwithstanding  the  notification  of  the  neutral  Power; 
a belligerent  ship  of  war  does  not  leave  a port  where  it  is  not 
entitled  to  remain,  the  neutral  Power  is  entitled  to  take  such 
measures  as  it  considers  necessary  to  render  the  ship  incapable 
of  taking  the  sea  during  the  war,  and  the  commanding  officer  of 
the  ship  must  facilitate  the  execution  of  such  measures. 

When  a belligerent  ship  is  detained  by  a neutral  power,  the 
officers  and  crew  are  likewise  detained. 

The  officers  and  crew  thus  detained  may  be  left  in  the  ship 
or  kept  either  on  another  vessel  or  on  land,  and  may  be  subject 


RIGHTS  AND  DUTIES  OF  NEUTRAL  POWERS 


647 


to  the  measures  of  restriction  which  it  may  appear  necessary  to 
impose  upon  them.  A sufficient  number  of  men  for  looking 
after  the  vessel  must,  however,  be  always  left  on  board. 

The  officers  may  be  left  at  liberty  on  giving  their  word  not 
to  quit  the  neutral  territory  without  permission. 

It  will  be  noted  that  the  neutral  possesses  the  right  to  proceed 
against  the  vessel  as  indicated  in  Article  24.  It  is  not  obliged 
to  do  so. 

Such  are  in  general  the  restrictions  placed  upon  belligerents 
and  the  duties  imposed  upon  neutrals  in  the  interest  of  the 
nations  at  large.  When  a belligerent  violates  a provision  of 
the  convention  it  is  responsible  for  its  action.  The  neutral 
is  likewise  responsible  for  a failure  to  perform  the  duties  incum- 
bent upon  it.  But  the  duty  of  the  neutral  is,  as  previously 
stated,  not  absolute;  it  is  relative  and  must  be  conditioned 
upon  the  means  at  its  disposal.  If  it  honestly  uses  its  means 
to  prevent  a violation  of  its  territory  and  to  fulfill  its  obliga- 
tions it  has  done  all  that  is  incumbent  upon  it  to  do.  Its  legal 
responsibilty  cannot  be  determined  by  its  success  or  failure. 
The  third  rule  of  the  Treaty  of  Washington  holds  that  “a 
neutral  government  is  bound  to  exercise  due  diligence  in  its 
own  ports  and  waters,  and  as  to  all  persons  within  its  juris- 
diction, to  prevent  any  violation  of  the  foregoing  obligations 
and  duties.”  The  spirit  of  the  treaty  commended  itself  to 
the  Conference,  but  it  was  unwilling  to  require  of  the  neutral 
a measure  of  diligence  out  of  proportion  to  the  means  at 
its  disposal.  Therefore,  the  term  “due  diligence”  was  inter- 
preted, and,  it  would  seem,  properly,  to  mean  such  “ surveil- 
lance as  the  means  at  its  disposal  allow  to  prevent  any  viola- 
tion of  the  above  articles  occurring  in  its  waters.”  (Article 
25.)  Thus  the  third  rule  of  the  Treaty  of  Washington  was 
formally  incorporated  into  the  Law  of  Nations. 

It  has  been  observed  that  the  convention  concerning  the  rights 
and  duties  of  neutral  Powers  and  persons  in  its  tenth  article 
provided  that  “resisting,  even  by  force,  attempts  to  violate 
its  neutrality  cannot  be  regarded  as  a hostile  act.”  The  twenty- 
si  xth  article  of  the  present  convention  is  to  the  same  effect,  for 


648 


THE  HAGUE  PEACE  CONFERENCES 


a neutral  preventing  a violation  of  its  territory  cannot  be  con- 
sidered as  engaging  in  hostilities  in  the  ordinary  sense  of  the 
word.  The  belligerent  has  committed  an  unlawful  act  and 
resistance  to  it  cannot  be  unlawful,  nor  should  it  be  considered 
as  the  manifestation  of  an  unfriendly  feeling.  The  belligerent, 
in  accepting  the  convention,  pledged  its  good  faith  to  the  per- 
formance of  its  terms  and  may  be  said  to  consent  in  advance 
to  any  act  necessary  or  proper  on  the  part  of  the  neutral  to 
preserve  the  convention  from  violation. 

It  will  be  recalled  that  various  articles  of  the  convention 
established  a general  rule  reserving  to  neutrals  the  right  to 
modify  it  by  local  legislation.  The  purpose  in  establishing  the 
general  rule  is  to  render  certain  the  rights  and  duties  of 
neutrals  in  naval  war.  For  the  reasons  which  have  been 
advanced,  it  seems  unlikely  that  neutrals  will  modify  the 
general  rule,  but  as  they  possess  the  right  in  certain  defined 
cases  so  to  do,  the  concluding  article  (Article  27)  of  the  con- 
vention has  not  a little  importance,  as  by  pledging  the  nations 
to  communicate  the  various  “ laws,  proclamations  and  other 
enactments  regulating  in  their  respective  countries  the  status 
of  belligerent  warships  in  their  ports  and  harbors,”  neutrals 
and  belligerents  may  know  in  advance  the  status  of  neutrality 
in  the  members  of  the  family  of  nations,  accepting  and  applying 
the  convention  concerning  the  rights  and  duties  of  neutral 
Powers  in  naval  warfare.* 


1 For  the  proceedings  in  detail  see  La  Deuxieme  Conference  Internationale 
de  Id  Paix,  1907,  vol.  iii,  pp.  460-514,  569-652,  695-735;  vol.  i,  pp.  282-285. 

See  an  excellent  article  on  the  Convention,  by  Charles  Cheney  Hyde, 
American  Journal  of  International  Law  (1908)  vol.  ii. 


CHAPTER  XIV. 


AERIAL  WARFARE,  THE  LIMITATION  OF  ARMAMENT 
THE  FACTORS  THAT  MAKE  FOR  PEACE. 

1.  Aekial  Waefare. 

The  third  article  of  the  second  Russian  Circular  called  upon 
the  Conference  “to  prohibit  the  throwing  of  projectiles  or 
explosives  of  any  kind  from  balloons  or  by  any  similar  means.” 
The  subject  was  referred  to  the  First  Commission  under  the 
presidency  of  M.  Beernaert  and  was  considered  by  the  sub- 
commission likewise  under  the  same  able  presidency. 

The  question  was  discussed  at  the  end  of  the  session  of 
May  29,  1899,  and  an  agreement  reached  without  difficulty. 
The  minute  of  the  meeting  is  but  a page  and  is  as  follows; 

The  President  presented  for  discussion  the  second  part  of  the 
third  topic:  Prohibition  of  the  throwing  of  projectiles  or  explo- 
t sives  of  any  kind  from  balloons  or  by  methods  of  a similar 
nature. 

General  den  Beer  Poortugael  read  the  following  declaration; 

“The  Netherland  Government  has  authorized  me  to  support 
this  proposition. 

“Does  it  not  seem  excessive  to  authorize  the  use  of  infernal 
machines  which  appear  to  fall  from  the  heavens? 

“ I know  well  that  when  one  is  forced  to  make  war,  it  is  neces- 
I sary  to  carry  it  on  as  energetically  as  possible,  but  that  does  not 
I mean,  however,  that  every  means  is  permitted. 

“At  the  Conference  of  Brussels  in  1874,  it  was  decided  in 
Article  12,  which  is  almost  like  Article  11  of  the  Russian  advance 
program,  that  the  laws  of  war  do  not  grant  belligerents  an 
unlimited  power  in  choosing  means  of  injuring  the  enemy,  and  in 
Article  13  of  the  final  protocol  of  that  conference,  the  following, 

1 among  others,  are  especially  forbidden  in  accordance  with  this 
principle:  a.  the  use  of  poison  or  poisoned  arms;  b.  the  treach- 
erous murder  of  persons  belonging  to  the  army  or  nation  of  the 
enemy.  Now,  the  progress  of  science,  especially  of  chemistry, 
has  been  such  that  things  hitherto  beyond  belief  are  realized 

649 


650 


THE  HAGUE  PEACE  CONFERENCES 


today.  We  can  foresee  the  use  of  projectiles  or  other  things 
filled  with  deleterious  gases,  soporific,  which,  dropped  from 
balloons  in  the  midst  of  troops,  would  at  once  put  them  out  of 
commission.  ” 

General  den  Beer  Poortugael  wished  to  avoid  scrupulously 
every  means  which  approached  perfidy  and  he  supported  the 
Russian  proposition. 

Colonel  de  Gross  de  Schwarzhoff  said  that  it  was  necessary  to 
state  in  voting  for  the  proposition,  that  it  was  not  intended  to 
forbid  the  use  of  mortars  or  other  cannon  which  shoot  high  in  the 
air,  but  that  the  words  “similar  methods”  applied  only  to  new 
means,  not  yet  invented  and  similar  to  the  use  of  balloons. 
Next,  it  was  necessary  to  declare  whether  the  prohibition,  once 
voted  for  and  accepted  by  the  Governments,  should  remain  in 
force  forever  or  only  for  a fixed  period,  for  example,  for  a period 
of  five  years,  as  was  proposed  for  rifles. 

The  sub-commission,  agreeing  with  the  interpretation  of  the 
German  delegate,  added,  to  prevent  any  misunderstanding,  the 
word  “new”  before  the  word  “methods.” 

Colonel  Gilinsky  said  that  according  to  the  idea  of  the  Russian 
Government,  the  different  methods  of  injuring  the  enemy 
actually  in  use,  were  sufficient. 

On  this  question  the  sub-commission  voted  affirmatively, 
with  the  exception  of  the  British  delegate,  and  with  the  reserve 
of  the  Roumanian  delegate,  who  limited  the  agreement  to  five 
years. ^ 

While  the  commission  was  in  favor  of  the  restriction,  it  will 
be  noted  that  there  was  an  under-current  in  favor  of  limiting 
the  prohibition  to  a period  of  five  years.  Aerial  warfare' was 
unknown,  and  the  military  delegates  were  willing  to  restrict  it 
so  that  they  might  experiment  with  balloons  in  order  to  see 
if  they  could  be  developed  and  controlled  in  such  a way  as  to 
make  them  usable  in  warfare.  If  such  should  prove  to  be  the 
case  they  were  unwilling  to  renounce  this  picturesque  and 
efficient  means  of  extermination.  The  man  in  arms  must  be 
put  hors  de  combat,  and  as  long  as  war  is  permitted  the  tend- 
ency will  be  to  cling  to  approved  methods  of  destruction  and  to 
invent  new  and  more  efficient  weapons. 

At  the  fourth  meeting  of  the  sub-commission,  held  June 
7,  1899,  Captain  Crozier  proposed,  in  an  admirable  and  brief 

’Conference  Internationale  de  la  Paix,  1899,  Part  II,  First  Commission, 
p.  49. 


THE  HAGUE  PEACE  CONFEKENCE 


651 


address,  a reconsideration  of  the  subject  with  a view  to  limit- 
ing the  restriction  to  a period  of  five  years.  Reconsideration 
was,  however,  refused. 

In  the  final  discussion  of  the  subject  in  the  first  commis- 
sion, Captain  Crozier  stated  in  substance  that  balloons  in 
vogue  cannot  be  effectively  used  in  war;  that  their  use  at 
present  is  neither  humane  nor  conformed  to  the  spirit  which 
animates  us,  because  we  cannot  predict  with  certainty  the 
place  where  the  projectiles  or  matter  thrown  from  the  balloon 
will  fall,  so  that  innocent  populations  may  be  struck  as  well 
as  combatants,  and  a church  may  be  destroyed  just  as  easily 
as  a battery.  If,  however,  invention  removes  these  faults 
and  balloons  be  subjected  to  control,  their  use  may  shorten 
war  and  reduce  its  evils  and  the  expense  it  entails.  From 
another  point  of  view  the  limitation  is  advisable  because  the 
proposition  should  be  adopted  unanimously.  As,  however, 
three  powers.  Great  Britain,  France  and  Roumania,  only, 
accepted  the  proposition,  provided  the  restriction  be  limited 
to  five  years,  the  acceptance  of  the  period  would  remove  all 
objection. 

This  line  of  reasoning,  simple  and  convincing  from  the  pro- 
fessional standpoint,  resulted  in  the  unanimous  adoption  of 
a signed  declaration  in  the  following  form ; 

The  Contracting  Powers  agree  to  prohibit,  for  a term  of 
five  years,  the  launching  of  projectiles  and  explosives  from 
balloons  or  by  others  new  methods  of  a similar  nature. 

The  present  declaration  is  only  binding  on  the  contracting 
powers  in  case  of  war  between  two  or  more  of  them. 

It  shall  cease  to  be  binding  from  the  time  when,  in  a war 
between  the  Contracting  Powers,  one  of  the  belligerents  is  joined 
by  a noncontracting  power. 

As  the  declaration  was  limited  to  a period  of  five  years  it 
expired  in  1904,  and  the  Russian  Government  properly  and 
wisely  placed  its  reconsideration  upon  the  program  for  the 
Second  Conference.  The  Belgian  Delegation  proposed  the 
renewal  of  the  declaration,  and  the  session  of  August  7,  1907, 
of  the  First  Sub-Commission  of  the  Second  Commission  was 
devoted  to  its  discussion. 


652 


THE  HAGUE  PEACE  CONFERENCES 


The  renewal  was  agreed  to  for  the  period  of  five  years,  but 
the  vote  was  far  from  unanimous,^  and  it  was  noticeable  that 
Russia,  its  proposer  in  1899,  voted  against  it  in  1907.  Russia 
took  the  attitude  of  Captain  Crozier  in  1899  that  the  science  of 
ballooning  is  an  unknown  quantity,  and  that  it  was  impossible 
to  forecast  its  future. 

Without  touching  these  questions  a trifle  premature  and 
perhaps  a little  imaginary,  we  may  extract  from  the  proposed 
prohibition  one  which  may  permanently  be  adopted,  namely, 
the  prohibition  to  drop  projectiles  from  balloons  upon  unde- 
fended towns,  villages  and  habitations.^ 

The  Russian  delegation  proposed  this  as  an  amendment 
to  Article  25  of  the  Laws  and  Customs  of  Land  Warfare  of 
1899.  Italy  proposed  an  amendment  of  a similar  nature  and 
as  a result  of  an  exchange  of  views  it  was  decided  to  amend 
Article  25  in  the  manner  proposed  by  Russia  and  Italy,  by 
inserting  in  the  text  the  following  phrase:  “by  whatever 
means.”  The  article  thus  amended  reads: 

The  attack  or  bombardment,  by  whatever  means,  of  towns, 
villages,  dwellings,  or  buildings  which  are  undefended  is  pro- 
hibited. 

The  happy  wording  of  this  amendment  is  due  to  the  French 
Delegation®  and  the  result  of  it  is  that  bombardment  by 
balloons,  if  and  when  possible,  is  to  be  controlled  and  regulated 
as  other  bombardments. 

But  to  return  to  the  Declaration  of  1899  and  its  subsequent 
fate.  The  failure  to  call  a conference  within  five  years  resulted 
in  the  expiration  of  the  declaration  by  the  mere  operation  of 
time.  To  prevent  a recurrence  of  this.  Sir  Edward  Fry  pro- 
posed in  the  plenary  session  of  the  Conference  of  August  14, 

* 29  for  (Germany  and  Roumania  on  condition  of  imanimity) : 6 against 
(Argentine,  Spain,  France,  Montenegro,  Persia,  Russia) ; 10  coimtries  did 
not  respond  to  the  roll  call. 

^ Speech  of  M.  Tcharykow,  La  Deuxieme  Conference  Internationale 
de  la  Paix,  1907,  Vol.  III.  2d  Commission,  1st  Sub-Commission,  p.  151. 

^ La  Deuxieme  Conference  Internationale  de  la  Paix.  1907,  Vol.  Ill, 
2d  Commission,  Second  Session,  p.  16. 


AERIAL  WARFARE 


653 


1907,  that  instead  of  five  years,  the  declaration  shall  remain  in 
force  until  the  close  of  the  Third  Peace  Conference.  This 
amendment  was  accepted  and  in  final  form  the  declaration 
reads  as  follows: 

The  Contracting  Powers  agree  to  prohibit,  for  a period  extend- 
ing to  the  close  of  the  Third  Peace  Conference,  the  discharge  of 
projectiles  and  explosives  from  balloons  or  by  other  new  methods 
of  a similar  nature. 

The  present  Declaration  is  only  binding  on  the  Contracting 
Powers  in  case  of  war  between  two  or  more  of  them. 

It  shall  cease  to  be  binding  from  the  time  when,  in  a war 
between  the  Contracting  Powers,  one  of  the  belligerents  is 
joined  by  a non-Contracting  Power. 

It  is  to  be  regretted  that  the  inhibition  was  voted  with  any 
limitation  of  time  and  it  is  hardly  less  a subject  of  regret 
that  some  of  the  greatest  and  most  progressive  nations^ 
voted  against  the  declaration  limited  as  it  is  to  a few  years. 
The  status  of  the  question  is  thus  that  a majority  of  the  powers 
bind  themselves  for  an  infinitesimal  period  of  time  to  refrain 
from  launching  projectiles  from  balloons,  because  it  is  not  yet 
demonstrated  that  balloons  can  be  successfully  used  for  mili- 
tary purposes;  that  experiments  will  be  made  in  all  quarters 
of  the  world  to  perfect  the  balloon  and  render  it  manageable. 
If  such  endeavor  be  successful  the  balloon  will  be  no  longer  a 
toy  but  a means  of  destruction,  and  the  nations  of  the 
earth  will  carry  war  into  the  air  unless  forbidden  by  the  con- 
science of  the  world. 

In  the  debate  upon  the  renewal  of  the  declaration  Lord 
Reay  asked 

if  it  was  not  enough  to  have  two  elements  in  which  the  nations 
might  give  free  scope  to  their  animosities  and  settle  their  quar- 
rels without  adding  a third? 

' Germany,  Argentine,  Spain,  France,  Montenegro,  Persia,  Roumania, 
Russia.  It  is  disquieting  that  the  following  States  failed  to  sign  the  declara- 
tion on  or  before  June  30,  1908,  the  last  day  for  signing  the  declaration: 
Germany,  Chili,  Denmark,  Spain,  France,  Guatemala,  Italy,  Japan, 
Mexico,  Montenego,  Nicaragua,  Paraguay,  Romnania,  Russia,  Servia, 
Sweden,  Venezuela,  See  Vol.  II,  p.  531. 


654 


THE  HAGUE  PEACE  CONFERENCES 


Continuing  he  said: 

In  the  domain  of  armaments  we  know  how  difficult  it  is  to 
apply  a remedy,  the  evil  being  so  widespread  that  it  is  difficult 
to  know  where  to  begin.  Happily  in  the  domain  of  aerial  navi- 
gation the  case  is  different  and  it  does  not  seem  impossible  to 
prevent  the  evil  because  no  nation  has  pushed  so  far  ahead  that 
it  cannot  retrace  its  steps. 

The  present  Conference  will  not,  I am  sure,  fail  to  recognize 
that  we  would  render  a great  service  to  humanity  and  the  cause 
of  peace  we  pursue  in  holding  the  people  back  from  this  fatal 
precipice.  In  addition,  financial  considerations  require  us 
to  do  our  utmost  to  check  an  increase  of  military  and  naval 
expenses  which  already  constitute  a crushing  burden  for  all 
nations,  an  increase  which  will  not  fail  to  be  felt  if  it  become 
necessary  to  add  to  the  budgets  an  item  for  the  development  of 
aerostatics. 

I am  firmly  convinced  that  the  Conference  must  act  while 
there  is  yet  time.  Of  what  use  will  our  efforts  be  to  lessen  the 
suffering  caused  by  war  if  we  call  into  being  a new  scourge,  more 
terrible  in  its  effects  than  the  instruments  whose  field  of  action 
we  seek  to  limit.  * 

The  slaughter  of  our  kind  proceeds  by  land  and  sea  and  the 
Conference  opened  up  a new  element,  the  air,  so  that  the 
bowels  of  the  earth— unless  infected  by  mines — are  the  only 
refuge  of  peace. 

2.  Limitation  of  Armament  ^ 

After  having  considered  the  various  conventions  and 
declarations  concerning  warfare,  whether  it  be  on  land  or  sea, 
or  whether  it  be  extended  to  the.  air,  as  seems  probable,  we  are 
now  in  a position  to  consider  the  question  of  disarmament  in 
its  larger  aspects.  It  will  be  recalled  that  the  First  Confer- 
ence owed  its  origin  to  the  Russian  rescript  of  August  24-12, 
1898,  in  which  the  Czar  declared  that 

the  maintenance  of  general  peace,  and  a possible  reduction  of 
the  excessive  armaments  which  weigh  upon  all  nations,  present 
themselves  in  the  existing  condition  of  the  whole  world,  as  the 
ideal  toward  which  the  endeavors  of  all  Governments  should  be 
directed. 

* La  Deuxieme  Conference  Internationale  de  la  Paix,  1907,  Vol.  Ill, 
Second  Commission,  First  Sub-Commission,  p-  153. 

^ For  various  projects  and  expressions  of  views  on  this  important  subject, 
see  ctes  et  Documents  relatif  au  Programme  de  la  Conference  de  la 
Paix,  published  by  order  of  the  Dutch  Government  (1899). 


THE  LIMITATION  OF  ARMAMENT 


655 


The  burden  imposed  by  universal  armament  and  its  constant 
increase  seems  to  have  been  the  reason  for  the  convocation  of 
the  First  Conference,  and  although  the  second  Russian  Circu- 
lar, dated  January  11, 1899  (December  30,  1898),  enumerated 
other  subjects  for  discussion  and  modified  considerably  the 
position  taken  regarding  armaments,  the  subject  of  their 
limitation  figured  prominently  in  the  circular  and  the  pro- 
gram which  it  proposed,  as  appears  from  a perusal  of  sec- 
tions (a)  and  (6)  and  subjects  1 to  4 of  the  circular,  already 
quoted  in  full.^ 

It  was  inevitable,  therefore,  that  the  question  of  armaments 
and  their  possible  limitation  would  be  the  subject  of  profound 
discussion  at  the  Conference,  and  it  will  be  recalled  that  the 
matters  contained  in  the  paragraphs  enumerated  in  the  second 
circular  were  referred  to  the  first  commission  of  the  Confer- 
ence of  1899.  As  the  results  reached  by  the  First  Commission 
have  already  been  set  forth,  it  is  unnecessary  to  repeat  or  to 
restate  them  in  this  connection.^  It  is  sufficient  to  call 
attention  to  the  general  arguments  advanced  against  the 
feasibility  of  any  limitation  of  armaments,  however  slight,  in 
the  present  state  of  affairs. 

The  discussion  of  the  subjects  mentioned  in  the  rescript  was 
largely  technical,  and  technical  reasons  justified  the  refusal  to 
prohibit  the  use  of  new  kinds  of  firearms,  new  explosives, 
more  powerful  powders  than  those  in  use,  the  employment  of 
submarine  torpedo-boats  or  plungers,  or  the  construction  in 
the  future  of  vessels  with  rams.  The  proposals  not  to  increase 
for  a fixed  period  land  and  naval  forces,  and,  as  a consequence 
thereof,  not  to  increase  military  or  naval  budgets,  were  ques- 
tions of  policy  not  to  be  accepted  or  rejected  upon  purely 
technical  grounds,  for  the  nations  might  have  agreed  to  these 
proposals  had  any  limitation  seemed  consistent  with  national 
policy  and  development.  We  are  familiar  with  the  result;  we 
may  not  be  so  familiar  with  the  process  of  reasoning  by  which 
the  negative  result  was  reached.  It  is  therefore  advisable 

'For  text  see  pp.  44-47,  supra. 

’ See  Chapter  II,  pp.  35,  54,  supra. 


656 


THE  HAGUE  PEACE  CONEERENCES 


to  quote  at  some  length  the  address  of  Colonel  Gilinsky, 
charged  with  the  presentation  of  the  Russian  proposal  for  the 
limitation  of  armaments;  the  reply  of  Colonel  Gross  von 
Schwarzhoff,  the  German  Delegate,  who  voiced  the  opposition 
to  the  proposal,  and  the  address  of  M.  Bourgeois,  which 
expressed  sympathy  with  the  idea  and  secured  the  acceptance 
of  the  resolution  keeping  the  subject  open  for  future  dis- 
cussion and  solution.^ 

In  introducing  the  Russian  proposals.  Colonel  Gilinsky 
said  that  the  Russian  Government  had  two  objects  in  view: 
the  first,  humanitarian,  sought  to  lessen  the  possibility  of  war 
and  to  remove  its  evils  and  calamities  as  far  as  possible;  the 
second,  founded  upon  economic  considerations,  aimed  to 
diminish  as  far  as  possible  the  enormous  weight  of  pecuniary 
charges  which  nations  are  obliged  to  meet  for  the  support  of 
their  armies  in  times  of  peace.  Omitting  references  to  the 
projects  tending  to  diminish  the  possibility  of  war.  Colonel 
Gilinsky  asked 

whether  the  peoples  represented  at  the  Conference  would  be 
entirely  satisfied  if  nothing  whatever  was  done  at  the  Conference 
to  lift  this  heavy  load  which  they  were  bearing  in  time  of  peace, 
and  which  was  so  enormous  that  open  war  had  been  considered 
almost  preferable  to  the  indefinite  continuance  of  such  unbear- 
able conditions. 

Colonel  Gilinsky  proceeded  to  examine  the  argument  that 
the  expenditure  of  money  for  the  support  of  the  army  was  a 
benefit  to  the  country  because  the  money  was  kept  in  the 
country;  and  he  pointed  out  the  difficulty  of  setting  a limit  to 
continued  increase  of  armaments  on  the  part  of  any  country 
which  considered  itself  in  danger,  except  by  virtue  of  an  inter- 
national agreement.  He  claimed  that  the  Russian  proposals 
were  not  in  themselves  novel,  since  they  simply  extended  over 
the  entire  world  principles  which  had  been  accepted  in  many 
of  the  countries  here  represented.  In  Germany  the  strength 
of  the  army  was  fixed  every  seven  years ; in  Russia  the  mili- 
tary budget  was  fixed  for  a term  of  five  years.  The  term 
might  be  shorter  if  the  Conference  so  decided. 

* The  translation  of  the  various  addresses  is  taken  from  Mr.  Holls’ 
Peace  Conference  at  The  Hague,  and  the  abstracts  are  either  quoted  or 
paraphrased  from  Mr.  Holls’  account. 


THE  LIMITATION  OF  ARMAMENT 


657 


We  suggest  nothing  new,  he  remarked,  except  the  decision 
and  the  courage  to  ascertain  the  facts,  and  to  say  that  the  time 
has  come  to  call  a halt.  Russia  proposes  this  to  you:  she 
invites  you  to  set  a limit  to  the  further  increase  of  military 
forces  at  a moment  when  she  herself  is  far  from  having  attained 
the  maximum  of  this  development,  for  we  Russians  do  not  call 
upon  more  than  twenty-six  to  twenty-nine  and  one-half  per 
cent  of  our  young  men  to  enter  the  ranks,  whereas  other  States 
require  twice  as  great  a percentage  or  even  more.  There  is  thus 
no  selfish  interest  in  the  Russian  proposal.  It  is  a purely 
humanitarian  idea,  and  a proposition  with  an  economic  feature 
which  you  can  entertain  and  discuss  in  absolute  confidence.  ‘ 

The  Colonel  expressed  the  hope  that  the  questions  be 
carefully  and  freely  discussed,  and  stated  that  disarmament 
was  neither  practicable  nor  desirable  until  an  agreement  had 
been  reached  regarding  a limitation  of  present  armaments. 

Colonel  Gross  von  Schwarzhoff  then  made  his  address  in 
reply.  He  first  spoke  concerning  the  remarks  of  General 
Den  Beer  Poortugael  who  advocated  the  Russian  propo- 
sitions. 

I can  hardly  believe  that  among  my  honored  colleagues  there 
is  a single  one  ready  to  state  that  his  sovereign,  his  govern- 
ment, is  engaged  in  working  for  the  inevitable  ruin,  the  slow 
but  sure  annihilation  of  his  country.  I have  no  mandate  to 
speak  for  my  honored  colleagues,  but  so  far  as  Germany  is  con- 
cerned, I am  able  completely  to  reassure  her  friends  and  to 
relieve  all  well-meant  anxiety.  The  German  people  is  not 
crushed  under  the  weight  of  charges  and  taxes, — it  is  not  hang- 
ing on  the  brink  of  an  abyss;  it  is  not  approaching  exhaustion 
and  ruin.  Quite  the  contrary;  public  and  private  wealth  is 
increasing,  the  general  welfare  and  standard  of  life  is  being 
raised  from  one  year  to  another.  So  far  as  compulsory  mili- 
tary service  is  concerned,  which  is  so  closely  connected  with 
those  questions,  the  German  does  not  regard  this  as  a heavy 
burden,  but  as  a sacred  and  patriotic  duty  to  which  he  owes  his 
country’s  existence,  its  prosperity,  and  its  future. 

Taking  up  Colonel  Gilinsky’s  propositions,  he  continued: 

I return  to  the  propositions  of  Colonel  Gilinsky,  and  to  the 
arguments  which  have  been  advanced,  and  which  to  my  mind 
are  not  quite  consistent  with  each  other.  On  the  one  hand,  it  is 
feared  that  excessive  armaments  may  bring  about  war;  on  the 

' Rolls’  Peace  Conference,  pp.  74-76. 


658 


THE  HAGUE  PEACE  CONFERENCES 


other,  that  the  exhaustion  of  national  wealth  will  make  war 
impossible.  As  for  me,  I have  too  much  confidence  in  the  wis- 
dom of  sovereigns  and  nations  to  share  such  fears.  On  the  one 
hand,  it  is  pretended  that  nothing  is  asked  but  things  which 
have  existed  for  a long  time  in  some  countries,  and  which  there- 
fore present  no  technical  difficulties;  on  the  other  hand,  it  is 
said  that  this  is  truly  a very  difficult  question,  the  solution  of 
which  would  require  a supreme  effort.  I am  entirely  of  the 
latter  opinion.  We  shall  encounter  insurmountable  obstacles — 
those  which  may  be  called  technical  in  a somewhat  wider  sense 
of  the  term.  I believe  that  the  question  of  effectives  cannot  be 
regarded  by  itself  alone,  disconnected  from  a number  of  other 
questions  to  which  it  is  quite  subordinated.  Such  questions, 
for  instance,  as  the  state  of  public  instruction,  the  length  of  time 
of  active  military  service,  the  number  of  established  regiments, 
the  effectives  of  each  army  unit,  the  number  and  duration  of  the 
drills  or  military  obligations  of  the  reserves,  the  location  of  the 
different  army  corps,  the  railway  system,  the  number  and  situ- 
ation of  fortified  places.  In  a modern  army  all  of  these  belong 
together  and  form  the  national  defense  which  leach  people  has 
organized  according  to  its  character,  its  history,  and  its  tra- 
ditions, taking  into  account  its  economical  resources,  its 
geographical  situation,  and  the  duties  incumbent  upon  it.  I 
believe  that  it  would  be  very  difficult  to  substitute  for  such 
an  eminently  national  task  an  international  convention.  It 
would  be  impossible  to  determine  the  extent  and  the  force  of  one 
single  portion  of  this  complicated  mechanism.  It  is  impossible 
to  speak  of  effectiveness  without  taking  into  account  the  other 
elements  which  I have  enumerated  in  a most  incomplete  manner. 
Furthermore,  mention  has  been  made  only  of  troops  stationed 
in  the  larger  cities,  and  with  this  Colonel  Gilinsky  agrees;  but 
there  is  territory  which  may  not  be  a part  of  the  particular 
country,  but  which  may  be  so  near  that  troops  stationed  there 
would  certainly  participate  in  a continental  war.  And  the 
countries  over  sea — how  could  they  ever  admit  a limitation  of 
their  armies  if  colonial  troops,  which  alone  menace  them,  are  not 
to  be  affected  by  this  convention? 

Gentlemen,  I have  simply  indicated  from  a general  point  of 
view  some  of  the  reasons  which,  according  to  my  view,  prevent 
the  realization  of  the  desire  which  is  surely  shared  by  us  all,  to 
arrive  at  an  agreement  on  the  question  before  us.  Permit  me 
to  add  a few  words  regarding  the  special  situation  of  the  country 
which  I have  the  honor  to  represent  in  this  body.  In  Germany 
the  number  of  effectives  is  fixed  by  an  agreement  between  the 
Government  and  the  Reichstag,  and  in  order  not  to  repeat 
every  year  the  same  debates,  the  number  was  fixed  for  seven  and 
later  for  five  years.  This  is  one  of  the  arguments  advanced  by 
Colonel  Gilinsky  when  he  declared  that  he  asks  of  us  nothing 


THE  LIMITATION  OF  ARMAMENT 


659 


new.  At  first  sight,  gentlemen,  it  would  seem  that  such  an 
arrangement  might  facilitate  our  adherance  to  a similar  proposi- 
tion; but  apart  from  the  fact  that  there  is  a great  difference 
between  a municipal  law  and  an  international  convention,  it  is 
precisely  our  “quinquennate”  which  prevents  us  from  making 
the  proposed  agreement.  There  are  two  reasons  against  it: 
first,  the  international  period  of  five  years  would  not  synchronize 
with  our  national  period,  and  this  would  be  a grave  obstacle; 
furthermore,  the  military  law  which  is  today  in  force  does  not 
fix  a special  number  of  effectives,  but  on  the  contrary  it  provides 
for  a continuous  increase  up  to  1902  or  1903,  in  which  year  the 
reorganization  begun  this  year  will  have  been  terminated. 
Up  to  then  it  would  be  impossible  for  us  to  maintain,  even  for 
two  consecutive  years,  the  same  number  of  effectives.^ 

At  a later  date,  M.  Bourgeois  expressed  his  dissatisfaction 
with  the  negative  results  of  the  discussion  as  embodied  in  the 
report  of  the  committee  and  insisted  that  something  of  a 
positive  nature  be  accomplished: 

I have  read  carefully  the  text  of  the  conclusions  adopted  by 
the  sub-committee.  This  report  shows  with  great  precision  and 
force  the  difficulties  now  in  the  way  of  the  adoption  of  an  inter- 
national treaty  for  the  limitation  of  effectives.  It  was  for  the 
purpose  of  examining  these  practical  difficulties  that  the  subject 
was  referred  to  this  sub-committee,  and  no  one  can  think  of 
criticising  the  manner  in  which  it  has  accomplished  its  task. 
But  this  first  committee  of  the  Conference  should  consider  the 
problem  presented  by  the  first  paragraph  of  the  circular  of 
Count  Mouravieff  from  a point  of  view  more  general  and  more 
elevated.  We  certainly  do  not  wish  to  remain  indifferent  to  a 
question  of  principle  presented  to  the  civilized  world  by  the 
generous  initiative  of  His  Majesty  the  Emperor  of  Russia.  It 
seems  to  me  necessary  that  an  additional  resolution  should  be 
adopted  by  us,  to  express  more  clearly  the  sentiment  which 
animated  the  last  speaker,  and  which  makes  us  all  hope  and 
wish  that  the  work  here  begun  may  not  be  abandoned.  The 
question  of  principle  may  be  stated  very  simply.  Is  it  desirable 
to  limit  the  military  charges  which  now  weigh  upon  the  world? 

I listened  with  great  care  in  the  last  session  to  the  remarkable 
speech  of  Colonel  von  Schwarzhoff.  He  presented  with  the 
greatest  possible  force  the  technical  objections  which,  according 
to  his  view,  prevented  the  committee  from  adopting  the  proposi- 
tions of  Colonel  Gilinsky.  It  did  not,  however,  seem  to  me  that 

^ La  Conference  Internationale  de  la  Paix,  1899,  part  II,  First  Commis- 
sion, pp.  27-28;  Holls’  Peace  Conference,  pp.  76-80. 


660 


THE  HAGUE  PEACE  CONFERENCES 


he  at  the  same  time  sufficiently  recognized  the  general  ideas  in 
pursuance  of  which  we  are  here  united.  He  showed  us  that 
Germany  is  easily  supporting  the  expense  of  its  military  organi- 
zation, and  he  reminded  us  that  notwithstanding  this,  his 
country  was  enjoying  a very  great  measure  of  commercial  pros- 
perity. I belong  to  a country  which  also  supports  readily  all 
personal  and  financial  obligations  imposed  by  national  defense 
upon  its  citizens,  and  we  have  the  hope  to  show  to  the  world 
next  year  that  we  have  not  gone  back  in  our  productive  activity, 
and  have  not  been  hindered  in  the  increase  of  our  financial  pros- 
perity. But  General  von  Schwarzhoff  will  surely  recognize 
with  me  that  if  in  his  country,  as  well  as  in  mine,  the  great 
resources,  which  are  now  devoted  to  military  organization, 
would,  at  least  in  part,  be  put  to  the  service  of  peaceful  and 
productive  activity,  the  grand  total  of  the  prosperity  of  each 
country  would  not  cease  to  increase  at  an  even  more  rapid  rate. 
It  is  this  idea  which  we  ought  not  only  to  express  here  among 
ourselves,  but  which,  if  possible,  we  should  declare  before  the 
public  opinion  of  the  world.  It  is  for  this  reason  that  if  I were 
obliged  to  vote  on  the  question  put  in  the  first  paragraph  of  the 
proposition  of  Colonel  Gilinsky,  I would  not  hesitate  to  vote  in 
the  affirmative. 

Besides,  we  have  hardly  the  right  here  to  consider  only 
whether  our  particular  country  supports  the  expense  of  armed 
peace.  Our  duty  is  higher.  It  is  the  general  situation  of  all 
nations  which  we  have  been  summoned  to  consider.  In  other 
words,  we  are  not  only  to  vote  on  questions  appertaining  to 
our  special  situation.  If  there  is  a general  idea  which  might 
serve  to  attain  universal  good,  it  is  our  duty  to  emancipate 
ourselves.  Our  object  is  not  to  form  a majority  and  a 
minority.  We  should  refrain  from  dwelling  upon  that  which 
separates  us,  but  emphasize  those  things  upon  which  we  are 
united.  If  we  deliberate  in  this  spirit,  I hope  we  shall  find 
a formula  which,  without  ignoring  the  difficulties  which  we  all 
understand,  shall  at  least  express  the  thought  that  a limitation 
of  armaments  would  be  a benefit  for  humanity,  and  this  will  give 
to  the  governments  that  moral  support  which  is  necessary  for 
them,  if  they  are  to  still  further  pursue  this  noble  object. 

Gentlemen,  the  object  of  civilization  seems  to  us  to  be  to  abolish 
more  and  more  the  struggle  for  life  between  men,  and  to  put  in 
its  stead  an  accord  between  them  for  the  struggle  against  the 
unrelenting  forces  of  matter.  This  is  the  same  thought  which, 
upon  the  initiative  of  the  Emperor  of  Russia,  it  is  proposed  that 
we  should  promote  by  international  agreement.  If  sad  neces- 
sity obliges  us  to  renounce  for  the  moment  an  immediate  and 
positive  engagement  to  carry  out  this  idea,  we  should  at  least 
attempt  to  show  public  opinion  that  we  have  sincerely  examined 
the  problem  presented  to  us.  We  shall  not  have  labored  in 
vain  if  in  a formula  of  general  terms  we  at  least  indicate  the 


THE  LIMITATION  OF  AKMAMENT 


661 


goal  to  be  approached,  as  we  all  hope  and  wish,  by  all  civilized 
nations.  ‘ 

Mr.  Bourgeois  proposed  the  following  resolution  which  was 
unanimously  adopted: 

The  committee  considers  that  a limitation  of  the  military 
charges  which  now  weigh  upon  the  world  is  greatly  to  be  desired 
in  the  interests  of  the  material  and  moral  welfare  of  humanity. 

As  was  to  be  expected,  the  attitude  of  the  United  States  was 
sympathetic,  but  pursuant  to  specific  instructions  from  the 
Secretary  of  State,  the  American  Delegation  took  but  little 
part  in  the  proceedings. 

In  accordance  with  these  instructions  the  American  Dele- 
gation drew  up  a statement,  already  quoted,^  expressing  its 
sympathy  and  views  on  the  subject,  which  was  presented  and 
read  at  the  last  meeting  of  the  First  Commission,  on  July  17, 
1899.® 

The  advocates  of  the  limitation  of  armaments  were  dis- 
satisfied with  the  resolution  proposed  by  M.  Bourgeois  and 
adopted  by  the  Conference,  because  they  had  hoped  for  a 
conventional  agreement  by  which  the  nations  would  bind 
themselves  either  to  reduce  armaments  or  to  maintain  the 
present  status  unchanged  for  a period  of  years.  It  cannot  be 
denied  that  the  Conference  failed  to  reach  an  agreement,  other 
than  an  agreement  to  disagree  on  this  subject;  and  yet  we 
should  not  overlook  the  fact  that  the  question  of  armaments 
was  elaborately  and  carefully  discussed  for  the  first  time  in  an 
international  conference  called  for  this  express  purpose.  In 
this  way  the  subject  was  given  an  importance  and  dignity 
which  it  previously  had  not  enjoyed,  and  it  is  not  too  much  to 
say  that  the  mere  presentation  and  discussion  of  the  subject 
place  its  opponents  upon  the  defensive.  Some  subjects  are 

* La  Conference  Internationale  de  la  Paix,  1899,  part  II,  pp.  33-34, 
Rolls’  Peace  Conference,  pp.  87-90. 

^P.  58,  supra. 

’La  Conference  Internationale  de  la  Paix,  part  II,  pp.  39-40;  Rolls’ 
Peace  Conference,  pp.  91-92. 


662 


THE  HAGUE  PEACE  CONFEEENCES 


dangerous  to  discuss,  and  a hope  of  ultimate  success  is  not 
excluded  when  the  nature  of  the  objections  and  the  arguments 
by  which  they  are  sustained  are  set  forth. 

If  the  result  of  the  discussion  was  unsatisfactory  to  the 
pacifists,  the  discussion  itself  was  very  displeasing  to  its 
opponents,  and  it  is  understood  that  several  nations  were 
unwilling  to  participate  in  the  Second  Conference  if  the  sub- 
ject figured  in  the  program,  or  to  take  part  in  the  proceed- 
ings of  the  Conference  if  the  subject  were  brought  forward. 
One  sure  of  his  cause  is  not  unwilling  to  discuss  it,  and  the  fear 
to  consider  shows  upon  what  an  insecure  basis  the  argument 
rests.  Other  nations,  on  the  contrary,  insisted  that  the  ques- 
tion of  armaments  should  be  included  in  the  program  and, 
as  this  was  not  done,  reserved  their  right  as  sovereign  nations 
to  present  the  matter  to  the  Conference  for  discussion.  The 
Prime  Minister  of  Great  Britain,  the  late  Sir  Henry  Campbell- 
Bannerman,  was,  as  is  well-known,  an  opponent  of  war  and 
a partisan  of  the  limitation  of  armaments,^  and,  pursuant  to 
his  instructions,  the  British  Delegation  presented  the  matter 
at  the  fourth  plenary  session  of  the  Second  Conference,  August 


* In  opening  the  Interparliamentary  Union  of  London,  July  23,  1906, 
Sir  Henry  said; 

“ I am  not  despondent  about  the  future.  In  the  first  place,  it  is  only  a 
few  short  years  since  peace  was  a wanderer  on  the  face  of  the  earth,  Uable 
at  any  moment  to  be  trampled  upon  and  despitefully  used;  and  if  wars  and 
preparations  for  wars  have  not  ceased  since  she  found  a rest  for  the  sole  of 
her  foot  at  The  Hague,  remember  that  time  is  needed  for  the  growth  of 
confidence  in  the  new  order  of  things,  and  that  allowance  must  be  made  for 
the  momentum  of  the  past  which  thrusts  the  old  regime  forward  upon  the 
new. 

“ Remember,  too,  that  the  people  are  on  your  side.  I know  it  is  said  that 
democracy  is  as  prone  to  war  as  any  other  form  of  government.  But 
democracy,  as  we  know  it,  is  a late  comer  on  the  world’s  stage,  where  it  has 
barely  had  time  to  become  conscious  of  its  characteristic  powers,  stiU  less 
to  exert  them  effectively  in  its  external  relations. 

“The  bonds  of  mutual  xmderstanding  and  esteem  are  strengthening 
between  the  peoples,  and  the  time  is  approaching  when  nothing  can  hold 
back  from  them  the  knowledge  that  it  is  they  who  are  the  victims  of  war 
and  militarism;  that  war  in  its  tawdry  triumphs  scatters  the  fruits  of  their 
labor,  breaks  down  the  paths  of  progress,  and  turns  the  fire  of  construc- 
tive energy  into  a destroying  force.” 


THE  LIMITATION  OP  ARMAMENT 


663 


17,  1907.  Our  accomplished  Secretary  of  State,  Honorable 
Elihu  Root,  is  an  outspoken  partisan  of  the  judicial  and  there- 
fore peaceful  settlement  of  international  controversies,  and 
he  specifically  reserved  the  right  in  a note,  dated  June  7,  1906, 
to  present  the  question  of  disarmament  to  the  Conference.  ‘ 
It  is,  therefore,  a matter  of  congratulation  that,  to  use  the 
happy  expression  of  the  late  John  Richard  Green,  “two  na- 
tions, but  one  people,”  namely,  the  English-speaking  world, 
presented  and  urged  the  question  of  the  limitation  of  arma- 
ments upon  the  Second  Conference. 

It  is  well-known  that  the  subject  of  the  limitation  of  arma- 
ments did  not  appear  in  the  official  program  prepared  by 
Russia  and  approved  by  the  nations  invited  to  the  Conference, 
and  an  examination  of  the  proceedings  of  the  Conference  shows 
that  the  subject  was  not  presented  to,  nor  was  it  discussed  in 
any  commission.  Outside  of  the  Conference,  however,  in 
season  and  out  of  season.  Sir  Edward  Fry,  Mr.  Choate,  M. 
Bourgeois  and  the  Baron  d’Estoumelles  de  Constant  discussed 
the  question,  and  the  initiative  taken  by  Sir  Edward  Fry  was 
with  the  knowledge,  consent  and  outspoken  approval  of  the 
American  and  French  Delegation.  The  subject  was  upper- 
most in  the  hearts  and  minds  of  many  of  the  Delegates,  and 
those  opposed  to  the  prolonged  discussion  of  1899  nevertheless 
consented  to  its  presentation  to  the  Conference  at  its  plenary 
session  of  August  17.  On  this  occasion  Sir  Edward  Fry, 
both  by  religion  and  practice  a follower  of  William  Penn, 
delivered  an  address  in  which,  after  referring  to  the  Russian 
proposition  concerning  armaments  in  the  program  of  the 
First  Conference,  the  recommendation  of  the  First  Conference, 
and  the  memorandum  of  Count  Mouravieff  of  August,  1898,  in 
which  he  deplored  the  economic  evils  incident  to  excessive 
armaments,  he  continued  as  follows; 

These  words,  so  eloquent  and  so  true  when  they  were  first 
uttered,  are  today  still  more  forcible  and  more  true.  For,  Mr. 

' See  Chapter  III,  pp.  103-104,  where  the  material  portion  of  this  note 
is  quoted.  See  also  Mr.  Root’s  Instructions  to  the  American  Delegation, 
Vol.  II,  p.  187. 


664 


THE  HAGUE  PEACE  CONFERENCES 


President,  since  that  date  military  expenditure  upon  armies  as 
well  as  upon  navies  has  considerably  increased.  Thus,  accord- 
ing to  the  most  exact  information  which  I have  received,  this 
expenditure  reached  in  1898 — that  is  to  say  in  the  year  which 
immediately  preceded  the  First  Conference  at  The  Hague — a 
total  of  more  than  £251,000,000  for  the  countries  of  Europe, 
with  the  exception  of  Turkey  and  Montenegro  (regarding  which 
I have  no  information),  the  United  States  of  America,  and 
Japan;  while  in  the  year  1906  the  similar  expenditure  of  the 
same  countries  exceeded  a total  of  £320,000,000. 

It  will  thus  be  seen  that  in  the  interval  between  the  two 
Conferences  annual  military  expenditure  has  been  augmented  by 
the  sum  of  £69,000,000,  or  more  than  1725  millions  of  francs, 
which  is  an  enormous  increase.  Such  is  this  excessive  expendi- 
ture which  might  be  employed  for  better  ends;  such,  Mr. 
President,  is  the  burden  under  which  our  populations  are  groan- 
ing; such  is  the  Christian  peace  of  the  civilized  world  in  the 
twentieth  century.  I will  not  speak  of  the  economic  aspect  of 
the  question,  of  the  great  mass  of  men  who  are  compelled  by 
these  preparations  for  war  to  leave  their  occupations  and  of  the 
prejudicial  effect  of  this  state  of  things  upon  the  general  pros- 
perity. You  know  this  aspect  of  the  question  better  than  I do. 

I am,  therefore,  quite  sure  that  you  will  agree  with  me  in 
the  conclusion  that  the  realization  of  the  desire  expressed  by  the 
Emperor  of  Russia  and  by  the  First  Conference  would  be  a great 
blessing  for  the  whole  of  humanity.  Is  this  desire  capable  of 
being  realized?  This  is  a question  to  which  I cannot  supply  a 
categorical  answer.  I can  only  assure  you  that  my  govern- 
ment is  a convinced  supporter  of  these  high  aspirations  and  that 
it  charges  me  to  invite  you  to  work  together  for  the  realization  of 
this  noble  desire. 

In  ancient  times,  Mr.  President,  men  dreamed  of  an  age  of 
gold  which  had  existed  on  earth  in  the  distant  past;  but  in  all 
ages  and  among  all  nations  poets,  sibyls,  prophets,  and  all  noble 
and  inspired  souls  have  always  cherished  the  hope  of  the  return 
of  this  golden  age  under  the  form  of  the  reign  of  universal  peace. 

Ultima  Cumaei  venit  jam  carmiais  aetas, 

Magnus  ab  integro  saeculorum  nascitur  ordo. 

Jam  redit  et  virgo,  redeunt  Saturnia  regna. 

Such  was  the  dream  of  the  Latin  poet  for  his  age;  but  today 
the  sense  of  the  solidarity  of  the  human  race  has  more  than  ever 
spread  over  the  whole  world.  It  is  this  sentiment  that  has 
rendered  possible  the  convocation  of  the  present  Conference;* 
and  it  is  in  the  name  of  this  sentiment  that  I request  you  not  to 
separate  without  having  asked  that  the  Governments  of  the 
world  should  devote  themselves  very  earnestly  to  the  question 
of  the  limitation  of  military  charges. 


THE  LIMITATION  OF  ARMAMENT 


665 


My  government  recognizes  that  it  belongs  to  the  duty  of 
every  country  to  protect  itself  against  its  enemies  and  against 
the  dangers  by  which  it  may  be  threatened,  and  that  every 
Government  has  the  right  and  the  duty  to  decide  what  its  own 
country  ought  to  do  for  this  purpose.  It  is,  therefore,  only  by 
means  of  the  good  will,  the  free  will,  of  each  Government,  acting 
in  its  own  right,  for  the  welfare  of  its  own  country,  that  the 
object  of  our  desires  can  be  realized. 

The  Government  of  his  Britannic  Majesty,  recognizing  that 
several  Powers  desire  to  restrict  their  military  expenditure,  and 
that  this  object  can  only  be  realized  by  the  independent  action 
of  each  Power,  has  thought  it  to  be  its  duty  to  inquire  whether 
there  are  any  means  for  satisfying  these  aspirations.  My  Gov- 
ernment has,  therefore,  authorized  us  to  make  the  declaration: 

The  Government  of  Great  Britain  will  be  prepared  to  com- 
municate annually  to  Powers  which  would  pursue  the  same 
course  the  program  for  the  construction  of  new  ships  of  war 
and  the  expenditure  which  this  program  would  entail.  This 
exchange  of  inclination  would  facilitate  an  exchange  of  views 
between  "the  Governments  on  the  subject  of  the  reductions  which 
it  might  be  possible  to  effect  by  mutual  agreement.  The  British 
Government  believes  that  in  this  way  it  might  be  possible  to 
arrive  at  an  understanding  with  regard  to  the  expenditure 
which  the  States  which  should  undertake  to  adopt  this  course 
would  be  justified  in  incorporating  in  their  estimates. 

In  conclusion,  therefore,  Mr.  President,  I have  the  honor  to 
propose  to  you  the  adoption  of  the  following  resolutions: 

The  Conference  confirms  the  resolution  adopted  by  the  Con- 
ference of  1899  in  regard  to  the  limitation  of  military  charges; 
and,  in  view  of  the  fact  that  military  charges  have  considerably 
increased  in  almost  all  countries  since  that  year,  the  Conference 
declares  that  it  is  highly  desirable  that  the  Governments  should 
resume  the  serious  study  of  this  question. ' 

At  the  conclusion  of  Sir  Edward’s  address,  M.  de  Nelidow 
read  the  following  letter  from  Mr.  Choate  on  behalf  of  the 
American  Delegation: 

In  the  course  of  the  negotiations  which  preceded  the  present 
Conference  the  government  of  the  United  States  considered  it 
to  be  its  duty  to  reserve  the  right  to  bring  forward  here  the 
important  subject  of  the  limitation  of  armaments,  in  the  hope 
that  that  might  advance  in  some  small  degree  the  lofty  concep- 
tion which  inspired  the  Emperor  of  Russia  in  his  first  appeal. 

While  regretting  that  more  progress  in  the  direction  indicated 

* La  Deuxi^me  Conference  Internationale  de  la  Paix,  1907,  Actes  et 
Documents,  Vol.  I,  pp.  90-92. 


666 


THE  HAGUE  PEACE  CONFERENCES 


by  His  Imperial  Majesty  cannot  be  made  at  this  moment,  we  are 
happy  to  think  that  there  is  no  intention  on  the  part  of  the 
nations  to  abandon  His  Majesty’s  endeavors,  and  we  request  to 
be  allowed  to  express  our  sympathy  for  the  views  expressed  by 
His  Excellency  the  first  delegate  of  Great  Britain,  and  to  support 
the  proposal  which  he  has  just  maded 

M.  de  Nelidow  also  read  a letter  from  the  first  Spanish  Dele- 
gate, Senor  de  Villa  Urrutia,  stating  that  the  Spanish  Govern- 
ment had  reserved  the  right  to  discuss  the  question  of  the 
limitation  of  armaments  submitted  to  the  former  Conference 
by  the  Czar;  that  he  regretted  circumstances  had  not  permitted 
the  nations  to  follow  this  noble  idea,  and  that  he  desired  to 
give  expression  to  the  sympathies  of  the  Spanish  Government 
with  the  views  expounded  by  Sir  Edward  Fry,  and  to  the  hope 
that  the  endeavors  of  all  the  nations  in  this  sense  might  one 
day  be  crowned  with  success^ 

The  President  further  read  a joint  communication  from  the 
Delegations  of  Argentine  and  Chile  informing  the  Conference 
that  by  virtue  of  the  Treaty  of  May  28, 1902,  and  the  Com- 
plementary Agreement  of  January  9,  1903,  a part  of  the  fleets 
of  these  two  countries  was  dismantled ; that  the  armed  cruisers 
in  course  of  construction  on  the  account  of  the  respective 
Governments  were  sold  upon  the  docks,  and  that  the  coim- 
tries  agreed  for  a period  of  five  years  to  abstain  from  the 
acquisition  of  vessels  of  war.® 

Recalling  the  prominent  part  that  M.  Bourgeois  took  in  the 
discussion  of  the  question  in  the  First  Conference,  it  was 
peculiarly  appropriate  that  he  should  be  heard  on  this  occasion, 
and  it  was  a source  of  pleasure  to  the  partisans  of  the  limita- 
tion of  armaments  when  M.  Bourgeois  rose  and  said: 

In  the  name  of  the  French  Delegation  I declare  our  support 
(je  declare  appuyer  expressement)  of  the  proposal  formulated  by 
Sir  Edward  Fry  and  upheld  by  our  colleagues  of  the  United 
States  of  America. 

The  first  delegate  of  the  French  Republic,  remembering  that 

* La  Deuxieme  Conf6rence  Internationale  de  la  Paix,  1907,  Actes  et 
Documents,  Vol.  I,  pp.  92-93. 

* Ibid.,  p.  93. 

^ Ibid.,  p.  93. 


THE  LIMITATION  OF  ARMAMENT 


667 


he  was  in  1899  the  initiator  of  the  voeu  of  the  first  Conference, 
will  perhaps  be  allowed  to  express  the  confident  belief  that 
between  now  and  the  meeting  of  our  next  assembly  the  study  to 
which  the  Conference  invites  the  Governments  in  the  name  of 
humanity  will  be  resolutely  pursued^ 

The  proceedings  were  closed  by  the  following  address  from 
M.  de  Nelidow; 

The  eloquence  of  His  Excellency  the  First  British  Delegate 
and  the  proposal  with  which  it  concluded  as  well  as  the  commu- 
nications with  which  I have  just  acquainted  you,  cannot,  it 
seems  to  me,  fail  to  meet  with  a sympathetic  reception  on  our 
part.  The  idea  of  diminishing  charges  which  weigh  upon  the 
populations  owing  to  the  fact  of  wars,  by  seeking  the  means  of 
putting  an  end  to  the  progressive  increase  of  armaments  on  land 
and  on  sea,  constituted  the  chief  motive  of  the  initiative  taken 
by  the  Emperor  of  Russia  in  order  to  bring  about  the  meeting 
of  the  Peace  Conference.  This  thought  was,  so  to  speak,  the 
corner-stone  of  that  action.  It  formed  the  starting-point  of  the 
Russian  Circular  of  August  12  (24),  1898,  and  was  placed  at  the 
head  of  the  program  which  the  Cabinet  of  St.  Petersburg 
proposed  to  the  Powers  in  its  Circular  of  December  30,  1898 
(January  11, 1899).  All  the  Governments  gave  their  adherance, 
and  the  Conference,  from  the  outset,  had  to  cocupy  itself  with  a 
proposal  of  the  Russian  delegation  which  aimed  at  preventing 
the  increase  of  armaments. 

Contact  with  reality,  however,  was  not  long  in  revealing  all 
the  practical  difl&culties  which  this  generous  thought  involved 
when  the  question  of  applying  it  arose.  In  the  committee 
which  was  entrusted  with  the  consideration  of  the  subject  very 
keen  differences  of  opinion  soon  broke  out,  and  the  debates 
assumed  such  a character  that,  instead  of  the  desired  under- 
standing, there  was  a danger  of  a disagreement  which  might 
have  proved  fatal  to  the  rest  of  the  labors  of  the  Conference. 
It  had  to  be  acknowledged  that  the  question  was  not  ripe,  that 
it  required  further  study  on  the  part  of  the  different  Govern- 
ments at  home;  and  it  was  in  this  sense  that,  after  having 
unanimously  adopted  the  resolution  which  has  just  been  recalled 
by  the  First  Delegate  of  Great  Britain,  the  committee  expressed 
the  desire  that  the  governments,  taking  account  of  the 
proposals  made  to  the  Conference  should  enter  upon  a study  of 
the  possibility  of  an  understanding  with  regard  to  the  limitation 
of  armed  forces  on  land  and  on  sea  and  of  military  estimates. 

But  here  once  more  practical  experience  was  not  destined  to 
correspond  with  the  ideal  nature  of  the  desire  {voeu).  As  I 

‘La  Deuxieme  Conference  Internationale  de  la  Paix,  1907,  Actes  et 
Documents,  Vol.  I,  p.  93. 


668 


THE  HAGUE  PEACE  CONFERENCES 


have  just  intimated,  only  two  States — Argentina  and  Chile — 
have  been  able  to  give  effect  to  that  voeu  by  concluding  a Con- 
vention of  Disarmament,  which  I have  had  the  honor  of  reading 
to  you.  The  majority  of  the  Powers  of  Europe  had  other  pre- 
occupations. Scarcely  had  the  Conference  terminated  its 
labors  when  troubles  which  arose  in  an  Empire  of  Eastern 
Asia  obliged  the  Governments  to  intervene  with  armed  force. 
A short  time  afterwards  one  of  the  great  European  Powers 
found  itself  engaged  in  South  Africa  in  a struggle  which  neces- 
sitated on  its  part  a great  military  effort.  Finally,  during  these 
last  years,  the  Far  East  was  the  theater  of  a gigantic  war,  the 
liquidation  of  which  is  barely  finished.  Need  I also  mention  the 
colonial  struggles  and  diplomatic  difficulties  which  may  have 
temporarily  compelled  one  Power  or  another  to  increase  its 
armaments?  The  result  was  that  the  Governments,  far  from 
having  been  able  to  occupy  themselves,  in  conformity  with  the 
desire  expressed  by  the  Conference,  with  the  means  of  limiting 
armaments,  had,  on  the  contrary,  to  increase  their  armaments 
to  an  extent  which  has  just  been  shown  you  by  the  figures 
adduced  by  Sir  Edward  Fry. 

It  was  in  consideration  of  these  circumstances,  gentlemen, 
that  the  Russian  Government  this  time  refrained  from  placing 
the  limitation  of  armaments  upon  the  program  of  the  Con- 
ference which  it  proposed  to  the  Powers.  To  begin  with,  it 
considered  that  this  question  was  not  ripe  for  being  discussed 
with  fruitful  results.  In  the  second  place,  it  did  not  desire  to 
provoke  discussions  which,  as  the  experience  of  1899  showed, 
could  only,  in  opposition  to  the  aim  of  our  common  endeavors, 
accentuate  a disagreement  among  the  Powers  by  giving  occasion 
for  irritating  debates.  The  Russian  Government,  for  its  part, 
was  determined  not  to  take  part  in  such  discussions,  and  it  knew 
that  this  was  likewise  the  determination  of  some  other  great 
Powers. 

Yet  the  seed  sown  at  the  time  of  the  First  Conference  has 
germinated  independently  of  the  action  of  the  Governments. 
A very  emphatic  movement  of  public  opinion  has  arisen  in 
different  countries  in  favor  of  the  limitation  of  armaments,  and 
the  Governments,  whose  sympathies  for  the  principle  have  not 
diminished,  in  spite  of  the  difl&culties  of  carrying  it  out,  find 
themselves  confronted  with  manifestations  which  they  are  not 
in  a position  to  satisfy.  Thus  it  is,  gentlemen,  that  the  British 
Government,  giving  expression  to  its  own  preoccupations,  and 
making  itself  the  organ  of  public  feeling,  evinced  its  intention  of 
nevertheless  calling  the  attention  of  the  Powers  assembled  in 
Conference  at  The  Hague  to  the  question  of  the  limitation  of 
armaments,  and  that  its  First  Delegate  has  just  brought  before 
us  the  voeu  which  the  cabinet  of  London  would  like  to  see 
adopted  by  us. 


THE  LIMITATION  OF  AEMAMENT 


669 


I for  my  part  am  unable  to  discover  any  other  means  of 
evincing  the  interest  which  the  Powers  take  in  this  question. 
If  the  question  was  not  ripe  in  1899,  it  is  not  any  more  so  in  1907. 
It  has  not  been  possible  to  do  anything  on  these  lines,  and  the 
Conference  today  finds  itself  as  little  prepared  to  enter  upon 
them  as  in  1899.  Any  discussion  which  should  in  itself  prove 
sterile  could  only  be  harmful  to  the  cause  which  was  in  view  by 
accentuating  differences  of  opinion  on  questions  of  fact,  while 
there  exists  unity  of  general  intentions  which  might  one  day 
meet  with  their  realization.  It  is  for  this  reason,  gentlemen, 
that  the  proposal  now  made  to  us  by  the  British  Delegation,  to 
confirm  the  resolution  adopted  by  the  Conference  of  1899  by 
formulating  anew  the  desire  which  was  then  expressed  is  what 
best  corresponds  with  the  present  state  of  the  question  and  with 
the  interest  which  we  all  have  in  seeing  it  directed  into  a channel 
where  the  unanimity  of  the  Powers  could  alone  constitute  a 
guarantee  of  its  further  progress.  And  it  will  be  an  honor  for 
the  Second  Peace  Conference  to  have  contributed  to  this  end  by 
its  immediate  vote. 

I therefore  can  only  applaud  the  English  initiative,  and 
recommend  you  to  unite  in  receiving  the  resolution,  as  it  has 
been  proposed  to  us  by  Sir  Edward  Fry,  with  unanimous  accla- 
mations.^ 

The  resolution  was  unanimously  accepted  without  being 
put  to  a vote.  It  was  said  at  the  time,  and  it  has  no  doubt 
been  repeated  wherever  the  question  of  armaments  has  been 
discussed,  that  the  proceedings  of  the  Conference  on  this  occa- 
sion were  farcical,  and  that  the  limitation  of  armaments  was 
quietly,  promptly — ^the  proceedings  lasted  but  twenty-five 
minutes — and  impressively  laid  to  rest.  The  reverse,  how- 
ever, is  true.  The  admirable  address  of  Sir  Edward  Fry  is  in- 
cluded in  the  proceedings  of  the  Conference;  the  resolution 
which  he  proposed  appears  in  the  Final  Act  of  the  Confer- 
ence, and  the  question  is  again  re-submitted  to  the  further  con- 
sideration and  judgment  of  enlightened  and  progressive  pub- 
lic opinion.  The  question  was  not  buried,  as  the  advocates 
of  armament  had  proposed;  it  goes  forth  with  the  approval 
of  two  Conferences,  and  there  can  be  no  doubt  that  it  will 
be  reconsidered  in  future  conferences  if  public  opinion  insists 
that  it  be  reconsidered.  An  international  conference  at  The 
Hague  is  not  a popular  assembly,  but  the  delegates  are  in  no 
uncertain  measure  servants  of  the  people,  and  if  international 

‘La  Deuxi^me  Conference  Internationale  de  la  Paix,  1907,  Actes  et 
Documents,  vol.  I.,  pp.  94-95. 


670 


THE  HAGUE  PEACE  CONFERENCES 


opinion  declare  in  its  favor,  there  can  be  no  doubt  that  Govern- 
ments dependent  upon  it  will  consider  the  question  and  solve 
it,  if  such  be  the  desire  of  the  international  community. 

There  is  no  doubt  that  disarmament  might  be  accomplished 
by  a universal  treaty  binding  the  nations  to  disband  their 
armies  and  dismantle  their  navies;  but  it  is  unreasonable  in  the 
present  state  of  affairs,  to  suppose  that  the  countries  of  the 
world  will  agree  to  such  a drastic  not  to  say  Utopian  measure. 
It  is  perhaps  too  much  to  hope  that  any  one  nation  will  disband 
its  forces,  or  that  any  two  nations  will  follow  permanently  the 
example  of  Argentine  and  Chile  in  the  absence  of  a general 
agreement.  The  experience,  however,  of  Great  Britain  and  the 
United  States  in  limiting  armed  vessels  in  the  Great  Lakes 
to  the  minimum  required  for  police  duty,  shows  that  little  or 
no  armament  is  as  consistent  with  national  dignity  as  it  is  with 
international  peace. ^ It  is  not  unreasonable  to  propose  that 
armies  and  navies  shall  bear  some  fixed  proportion  to  the 
population  of  the  respective  countries,  or  that  by  mutual 
agreement  the  nations  might  enter  into  a treaty  to  maintain 
for  a definite  period  of  years  their  land  and  naval  forces  at 
the  present  size  and  standard  of  efficiency.  The  relative 
equality  would  not  be  disturbed  by  this  last  method. 

' The  naval  force  to  be  maintained  upon  the  American  lakes,  by  His 
Majesty  and  the  Government  of  the  United  States,  shall  henceforth  be  con- 
fined to  the  following  vessels  on  eachside;  that  is — 

On  lake  Ontario,  to  one  vessel  not  exceeding  one  hundred  tons  burden, 
and  armed  with  one  eighteen-pound  cannon. 

On  the  upper  lakes,  to  two  vessels,  not  exceeding  like  burden  each, 
and  armed  with  like  force. 

On  the  waters  of  Lake  Champlain,  to  one  vessel  not  exceeding  like 
burden,  and  armed  with  like  force. 

All  other  armed  vessels  on  these  lakes  shall  be  forthwith  dismantled, 
and  no  other  vessels  of  war  shall  be  there  built  or  armed. 

If  either  party  should  hereafter  be  desirous  of  annulling  this  stipulation, 
and  should  give  notice  to  that  effect  to  the  other  party,  it  shall  cease  to  be 
binding  after  the  expiration  of  six  months  from  the  date  of  such  notice. 

The  naval  force  so  to  be  limited  shall  be  restricted  to  such  services  as 
will,  in  no  respect,  interfere  with  the  proper  duties  of  the  armed  vessels  of 
the  other  party.  Agreement  between  Great  Britain  and  the  United 
States,  concluded  in  April,  1817  (Statutes  at  large,  Vol.  8,  p.  231). 


FACTORS  THAT  MAKE  FOR  PEACE 


671 


The  Conference,  however,  was  unwilling  to  take  the  step, 
however  desirable  it  may  seem  from  the  economic  standpoint, 
leaving  out  other  and  higher  considerations.  It  is  safe  to 
assume  that  armies  and  navies  will  remain  as  long  as  nations 
resort  to  force  for  the  settlement  of  international  disputes, 
and  it  is  difficult  to  conceive  a time  or  place  in  which  an  armed 
force  will  not  be  required  at  least  for  police  duty. 

Although  enthusiasts  propose  disarmament  or  the  limita- 
tion of  armaments  in  the  present  state  of  the  world’s  affairs, 
public  opinion  does  not  seem  ripe  for  either  proposal.  With- 
out venturing  a criticism  of  those  with  whose  aims  I deeply 
sympathize,  I believe  that  more  real  progress  would  be  made 
towards  disarmament  or  the  limitation  of  armaments  if  a sane 
and  serious  attempt  were  made  to  eliminate  the  causes  that 
ordinarily  produce  war,  or  if  a satisfactory  substitute  for  war 
were  matured  so  reasonable  in  itself  that  it  would  be  unreason- 
able not  to  accept  it  as  a substitute.  Good  offices  and  media- 
tion, the  arbitration  and  judicial  settlement  of  international 
controversies  would  render  the  resort  to  arms  less  frequent, 
and  if  by  practical  experience  nations  found  that  the  burden 
of  armament  is  unnecessary  in  the  changed  state  of  interna- 
tional relations,  public  opinion  would  insist  that  the  burden  be 
lessened  if  not  wholly  removed.  We  recognize  peace,  not 
war,  as  the  normal  state  of  mankind;  therefore  all  means  calcu- 
lated to  meantain  peace  and  which  actually  do  maintain  it  are 
steps  toward  disarmament  or  the  limitation  of  armaments. 
From  this  point  of  view,  disarmament  is  not  looked  upon  as  a 
condition  precedent  to  peace;  but  as  the  consequence  of  the 
pacific  settlement  of  international  disputes.  If  it  be  shown 
that  vast  armaments  are  a useless  burden,  it  cannot  be  sup- 
posed that  the  taxpayer  will  voluntarily  bend  his  back  to  the 
burden,  and  we  shall  find  in  international  law,  as  we  have  found 
in  municipal  relations,  that  the  hand  that  controls  the  purse 
will  likewise  control  the  sword.  As  aptly  said  by  M.  Bour- 
geois : 

Disarmament  is  a consequence  and  not  a preparation.  In 
order  that  disarmament  may  be  possible,  it  is  necessary  that 


672 


THE  HAGUE  PEACE  CONFERENCES 


each  should  feel  that  his  right  is  assured.  It  is  the  security  of 
law  which  ought  first  to  be  organized.  Behind  this  rampart 
nations  will  disarm  easily  because  they  will  no  longer  have  the 
fear  which  obliges  them  to  arm  themselves  today.  It  is  law 
and  justice  which  must  continue  to  be  the  first  object  of  universal 
Conference;  for  those  who  desire  peace,  the  creation  and  guar- 
antee of  justice  between  nations  as  between  individuals  is  the 
veritable  goal,  for  peace  without  law  is  not  peace.^ 

3.  Factors  that  Make  for  Peace 

A study  of  the  present  situation  and  the  progress  towards 
law  as  the  measure  and  guarantee  of  international  as  well  as 
national  rights  show  that  there  are  many  and  mighty  factors 
making  for  peace. 

It  is  a truism  that  peace  is  the  normal  condition  of  nations 
and  that  war,  however  much  we  may  be  exposed  to  its  out- 
break, is  abnormal  in  its  nature  and  temporary,  although  its 
consequences  are  spread  over  an  incalculable  future.  The 
reason  that  peace  is  the  normal  state  of  affairs  and  not  the 
exception  is  due  to  a universal  desire  for  peace;  for  just  as 
nations  have  found  internal  peace  necessary  to  their  develop- 
ment, they  have  found  and  are  finding  that  international  peace 
is  indispensable  to  the  progress  of  the  world  along  the  lines  of 
justice  and  therefore  of  peace. 

A.  INDEPENDENCE  AND  INTERDEPENDENCE  OF  NATIONS. 

There  can  be  no  doubt  that  the  independence  of  nations  has 
contributed  to  national  and  indeed  to  international  stability, 
because  when  the  independence  of  a nation  is  threatened  by 
a powerful  nation  or  combination  of  nations,  it  is  idle  to  insist 
that  the  nation  in  jeopardy  shall  not  prepare  itself  for  the 
maintenance  and  assertion  of  its  independence  upon  appropri- 
ate occasions.  The  statesman  looks  beyond  national  bound- 
aries and  devotes  every  resource  of  his  country  to  the  purpose 
of  defense,  so  that  revenues  are  squandered  and  the  future 

* Address  of  M.  Leon  Bourgeois  on  the  Second  Conference  of  the  Hague, 
delivered  before  the  Interparliamentary  Union  of  France,  November  14, 
1907. 


FACTORS  THAT  MAKE  FOR  PEACE 


673 


pledged  to  meet  successfully  an  attack  from  whatever  quarter 
it  may  come.  In  such  a state  of  mind,  trifles  assume  impor- 
tance and  an  incident  which  should  be  unnoticed,  and  which 
would  otherwise  cause  but  little  comment  is  magnified  into  an 
event  of  supreme  moment.  A state  of  unrest  exists  and  a 
national  outburst  may  at  any  time  force  the  hand  alike  of 
king  and  minister.  If  we  recall  the  fact  that  a stiff,  uncom- 
promising foreign  policy  is  unfortunately  popular  with  the 
masses,  we  can  appreciate  the  temptation  to  which  unscru- 
pulous men  of  affairs  are  exposed,  and  we  can  see  the  funda- 
mental importance  of  removing  from  the  field  of  discussion  and 
of  danger,  international  controversies  which  may,  if  unsettled, 
serve  as  a pretext  for  war  or  war-like  preparation. 

If  such  is  the  situation  when  independence  is  an  established 
fact,  we  can  understand  the  confusion,  approaching  anarchy, 
before  the  independence  of  States  was  recognized  as  a funda- 
mental and  cardinal  doctrine  of  international  law.  The 
people  chafed  under  discrimination,  and  the  recognition  of 
independence  and  its  corollary,  equality,  was  regarded  as 
indispensable  to  the  existence  of  a nation,  however  small. 
The  pretensions  of  the  Holy  Roman  Empire  to  precedence  in 
the  family  of  nations,  the  claim  of  the  Church,  not  merely  to 
spiritual  but  to  temporal  ascendency,  without  the  means  at 
hand  to  compel  the  one  since  the  Reformation  or  to  support 
the  other  since  the  principle  of  nationality  made  its  entry 
into  international  law,  received  a shock,  from  which  they  never 
recovered,  by  the  Treaty  of  Westphalia,  which  recognized 
the  independence  of  nations  irrespective  of  their  origin  or  of 
their  religious  beliefs  and  sympathies. 

The  equahty  of  nations,  as  has  been  said,  follows  from  a 
recognition  of  their  independence,  and  the  institution  of 
permanent  embassies  and  legations,  by  means  of  which  the 
interests  of  nations  were  represented  and  safeguarded  in 
foreign  parts  upon  a plane  of  equality,  provided  a means  by 
which  State  might  communicate  readily  with  State  through 
its  chosen  representatives,  and  by  a free  and  frank  exchange 
of  views,  settle  controversies,  which  unfortunately  arise,  and 


674 


THE  HAGUE  PEACE  CONFERENCES 


thus  prevent  divergence  of  views  from  reaching  the  acute 
stage  of  international  controversies. 

But  however  unqualified  be  the  acceptance  of  independence 
and  equality,  we  must  understand  that  independence  and 
equality  mean  independence  and  equality  of  right;  that 
independence  only  confers  the  right  to  act  freely  and  without 
dictation  in  accordance  with  the  principles  of  justice;  that 
independence  cannot  mean  a right  to  violate  the  usages  and 
customs  which  make  up  the  body  of  international  law,  and 
that  absolute  national  independence  is  as  inconsistent  with 
international  law  as  the  claim  of  absolute  individual  independ- 
ence is  unthinkable  in  the  domain  of  municipal  law.  Absolute 
in  terms,  it  is  relative  in  its  exercise;  because  the  independ- 
ence of  any  nation  necessarily  recognizes  the  independ- 
ence of  every  other  nation,  for  we  cannot  claim  from  others 
what  we  are  unwilling  to  concede  to  them.  Independence, 
therefore,  in  its  actual  exercise  shades  imperceptibly  into 
dependence,  and  at  the  present  day  we  see  that  progress  is 
only  possible  if  nations  in  the  exercise  of  their  absolute  rights 
yield  something  in  the  interest  of  the  family  of  nations,  for 
absolute  independence  without  check  or  control  is  synony- 
mous with  anarchy.  A claim  of  absolute  independence  would 
result  in  international  isolation,  and  no  nation,  any  more  than 
any  man,  can  live  for  itself  alone. 

The  independence  of  nations  is  therefore  yielding  to  the 
interdependence  of  nations,  and  the  question  is  not  how  far 
shall  each  nation  act  as  an  independent  unit,  but  how  far 
should  it  sacrifice,  or  can  it  sacrifice,  its  independent  rights, 
and  how  far  it  can  safely  renounce  its  independence  in  matters 
unessential  to  its  existence  as  a political  unit.  We  are  making 
the  discovery  in  international  politics  that  the  whole  is  greater 
than  any  of  its  parts,  and  international  conferences  which 
meet  with  periodic  regularity  can  only  accomplish  the  results 
expected  of  them  if  each  nation  yields  something  of  its  initia- 
tive, not  to  any  nation,  but  to  the  nations  as  a whole.  Inde- 
pendence is  the  formula  of  the  past;  interdependence  is  the 
hope  of  the  future. 


FACTORS  THAT  MAKE  FOR  PEACE 


675 


These  truths  are  so  self-evident  that  they  need  neither 
argument  nor  illustration,  and  yet  they  may  be  made  more 
acceptable — they  can  hardly  be  made  clearer — by  a few  apt 
illustrations.  War,  we  are  told,  is  a relation  between  State 
and  State,  and  yet  we  know  that  if  two  States  be  at  war  its 
consequences  extend  to  the  remotest  corners  of  the  earth. 
We  cannot,  if  we  would,  isolate  the  combatants.  If  the  war 
be  land  warfare,  neutral  subjects  or  citizens  residing  in  the 
dominions  of  either  combatant  are  affected  by  its  progress,  and 
their  peaceable  pursuits  are  checked  and  subjected  to  the 
supposed  interests  of  the  belligerents.  Although  not  parties 
to  the  war  and  although  they  may  have  protested  against  its 
outbreak,  they  owe  a temporary  allegiance  to  the  country  of 
their  residence,  and  all  intercourse  with  the  neutral  citizens 
and  subjects  residing  within  the  dominions  of  the  other  bellig- 
erent is  illegal.  If  a war  extend  to  the  high  seas,  citizens 
and  subjects  at  peace  with  the  belligerents  are  hampered  by 
the  state  of  war,  because  they  can  no  longer  trade  with  either 
belligerent  without  submitting  to  visit  and  search ; they  may  not 
trade  in  contraband  of  war  without  risk  of  seizure  and  capture, 
and  they  are  excluded  from  blockaded  ports.  The  commerce 
of  the  world  is  paralyzed;  the  markets  of  the  world  are  thrown 
into  confusion,  because  two  or  more  nations  have  closed  their 
ears  to  the  voice  of  reason  and  have  resorted  to  arms.  The 
innocent  are  made  to  suffer  with  the  guilty,  although  in  a less 
degree. 

B.  INTERNATIONAL  COMMERCE. 

If,  however,  we  consider  how  dependent  each  nation  is  upon 
the  products,  the  industry  and  commerce  of  other  nations, 
how  unable  it  is  to  support  itself  without  an  exchange  of  its 
own  products,  we  see  at  once  that  the  consequences  of  war 
are  not  and  cannot  be  confined  to  the  belligerents,  but  that  the 
neutral  merchant,  shipper  and  manufacturer  are  affected  by 
the  contest.  I do  not  speak  of  the  withdrawal  of  the  subjects 
and  citizens  of  the  belligerents  from  productive  employment, 
nor  do  I lay  stress  upon  the  economic  distress  caused  by  the 


676 


THE  HAGUE  PEACE  CONFERENCES 


war  and  the  taxes  extended  over  a period  of  years  which  are 
its  inevitable  consequence.  I look  merely  at  the  hardship  to 
the  neutrals,  and  ask  myself  whether  the  interest  and  advan- 
tage of  peace  to  neutrals  and  the  loss  and  injury  caused  by 
war  will  not  lead  them,  influenced  by  enlightened  selfishness, 
if  not  by  higher  motives,  to  throw  the  weight  of  their  influence 
for  the  settlement  of  international  conflicts  by  peaceable 
means. 

As  the  language  of  the  soldier  in  the  field  is  perhaps  more 
convincing  than  that  of  the  philanthropist  or  the  philosopher 
in  his  study,  I quote  the  measured  statement  of  General  Wash- 
ington, who,  after  securing  the  independence  of  his  country  on 
the  battlefield,  preserved  that  independence  as  our  first 
President  by  an  enlightened  policy  of  peace  and  goodwill  to 
nations.  In  a letter  to  Lafayette,  written  in  1786,  he  said: 

Although  I pretend  to  no  peculiar  information  respecting 
commercial  affairs,  nor  any  foresight  into  the  scenes  of  futurity, 
yet,  as  the  member  of  an  infant  empire,  as  a philanthropist  by 
character,  and  (if  I may  be  allowed  the  expression)  as  a citizen  of 
the  great  republic  of  humanity  at  large,  I cannot  help  turning 
my  attention  sometimes  to  this  subject.  I would  be  understood 
to  mean,  I cannot  avoid  reflecting  with  pleasure  on  the  prob- 
able influence,  that  commerce  may  hereafter  have  on  human 
manners  and  society  in  general.  On  these  occasions  I consider 
how  mankind  may  be  connected  like  one  great  family  in  frater- 
nal ties.  I indulge  a fond,  perhaps  an  enthusiastic  idea,  that 
as  the  world  is  evidently  much  less  barbarous  than  it  has 
been,  its  melioration  must  still  be  progressive;  that  nations  are 
becoming  more  humanized  in  their  policy,  that  the  subjects  of 
ambition  and  causes  for  hostility  are  daily  diminishing  and 
in  fine  that  the  period  is  not  very  remote,  when  the  benefits 
of  a liberal  and  free  commerce  will  pretty  generally  succeed  to 
the  devastations  and  horrors  of  war.^ 

Lest  it  may  be  supposed  that  this  is  an  isolated  expression 
of  the  soldier  and  statesman  whom  we  revere  as  the  father  of 
his  country,  I quote  the  following  passages  from  his  writings. 

In  a previous  letter,  dated  July  25,  1885,  to  David  Hum- 


* Ford’s  writings  of  George  Washington,  Vol.  XI,  pp.  58-59. 


FACTORS  THAT  MAKE  FOR  PEACE 


677 


phreys,  Secretary  of  the  Commission  sent  abroad  to  negotiate 
treaties  of  commerce,  he  wrote; 

My  first  wish  is  to  see  this  plague  to  mankind  [war]  banished 
from  the  earth,  and  the  sons  and  daughters  of  this  world 
employed  in  more  pleasing  and  innocent  amusements,  than  in 
preparing  implements  and  exercising  them  for  the  destruction 
of  mankind.  Rather  than  quarrel  about  territory,  let  the  poor, 
the  needy,  and  oppressed  of  the  earth,  and  those  who  want  land, 
resort  to  the  fertile  plains  of  our  western  country,  the  second 
land  of  promise,  and  there  dwell  in  peace  fulfilling  the  first  and 
great  commandment.^ 

In  October  7,  of  the  same  year,  in  a letter  to  the  Marquis 
de  la  Rouerie,  an  officer  just  appointed  to  the  command  of  a 
French  army  corps,  he  said: 

I never  expect  to  draw  my  sword  again.  I can  scarcely  con- 
ceive the  cause  that  would  induce  me  to  do  it My 

first  wish  is  (although  it  is  against  the  profession  of  arms, 
and  would  clip  the  wings  of  some  of  your  young  soldiers,  who  are 
soaring  after  glory)  to  see  the  whole  world  in  peace,  and  the 
inhabitants  of  it  as  one  band  of  brothers  striving  who  should 
contribute  most  to  the  happiness  of  mankind. 

Again,  in  a letter  to  Lafayette,  dated  January  10,  1788,  he 
wrote: 

To  know  the  affinity  of  tongues  seems  to  be  one  step  to- 
wards promoting  the  affinity  of  nations.  Would  to  God,  the 
harmony  of  nations  were  an  object  that  lay  nearest  to  the  hearts 
of  sovereigns;  and  that  the  incentives  to  peace,  of  which  com- 
merce and  facility  of  understanding  each  other  are  not  the  most 
inconsiderable,  might  be  daily  increased!® 

‘ Ford’s  Writings  of  George  Washington,  Vol.  X,  p.  473. 

In  a letter  of  June,  1788,  he  wrote  to  Lafayette  as  follows: 

“ There  seems  to  be  a great  deal  of  bloody  work  cut  out  for  this  summer 
in  the  north  of  Europe.  If  war,  want,  and  plague  are  to  desolate  those 
huge  armies  that  are  assembled,  who,  that  has  the  feelings  of  a man,  can 
refrain  from  shedding  a tear  over  the  miserable  victims  of  regal  ambition? 
It  is  really  a strange  thing  that  there  should  not  be  room  enough  in 
the  world  for  men  to  live  without  cutting  one  another’s  throats.” — Sparks’ 
Writings  of  George  Washington,  Vol.  IX,  p.  380. 

This  is  the  language  of  a pacifist,  and  were  its  authenticity  not  beyond 
question,  it  might  well  be  attributed  to  Franklin,  who  looked  forward  to 
“the  discovery  of  a plan  that  would  induce  and  oblige  nations  to  settle 
their  disputes  without  first  cutting  one  another’s  throats.” — Letter  to 
Richard  Price,  February  6,  1780. 

“ Sparks’  Writings  of  George  Washington  ,Vol.  IX,  pp.  138-139. 

^ Ibid.,  p.  306. 


678  THE  HAGUE  PEACE  CONFERENCES 

And,  finally,  lest  these  quotations  become  by  their  very 
number  and  weight  oppressive,  I quote  from  a letter  dated 
April  25,  1788,  to  the  Marquis  de  Chastellux,  who  had  just 
taken  to  himself  a wife: 

While  you  have  been  makinglove, under  the  banner  of  Hymen, 
the  great  Personages  in  the  North,  have  been  making  war,  under 
the  inspiration,  or  rather  under  the  infatuation  of  Mars.  Now, 
for  my  part,  I humbly  conceive,  you  have  had  much  the  best 
and  wisest  of  the  bargain.  For  certainly  it  is  more  consonant 
to  all  the  principles  of  reason  and  religion  (natural  and  revealed) 
to  replenish  the  earth  with  inhabitants  rather  than  to  depopu- 
late it  by  killing  those  already  in  existence,  besides,  it  is  time 
for  the  age  of  knight-errantry  and  mad-heroism  to  be  at  an  end. 
Your  young  military  men,  who  want  to  reap  the  harvest  of 
laurels,  don’t  care  (I  suppose)  how  many  seeds  of  war  are  sown; 
but  for  the  sake  of  humanity  it  is  devoutly  to  be  wished,  that 
the  manly  employment  of  agriculture,  and  the  humanizing 
benefits  of  commerce,  would  supersede  the  waste  of  war  and  the 
rage  of  conquest;  and  the  swords  might  be  turned  into  plough- 
shares, the  spears  into  pruninghooks,  and,  as  the  Scripture  ex- 
presses it,  “the  nations  learn  war  no  more.’’* 

It  cannot  be  doubted,  therefore,  that  international  com- 
merce is  a factor  that  makes  strongly  for  peace,  and  that  its 
triumph,  however  long  delayed,  will  be  as  complete  and  bene- 
ficial as  the  triumph  of  neutral  rights  in  the  long  contest  with 
belligerent  privileges. 

C.  GOOn  UNDERSTANDING  BASED  UPON  KNOWLEDGE  AND 
SYMPATHY. 

If  we  examine  the  relations  of  everyday  life,  we  find  that 
many,  if  not  most  of  our  differences  with  neighbors  result 
from  a partial  and  therefore  imperfect  understanding  of  their 
motives  and  purposes,  and  that  a heart^to-heart  talk,  however 
disagreeable  it  may  be,  by  explaining  the  difference  and 
removing  the  difficulty,  restores  confidence,  without  which 
peace  and  content  are  impossible.  If  we  consider  controver- 
sies between  nations  we  find,  however  unreasonable  they  may 
seem  at  first  sight  to  be,  that  they  are,  nevertheless,  suscep- 


‘ Ford’s  Writings  of  George  Washington,  Vol.  XI,  pp.  247-248. 


FACTOES  THAT  MAKE  FOR  PEACE 


679 


tible  of  explanation  and  settlement,  if  only  we  study  the  origin 
and  nature  of  the  controversy  and,  by  a frank  exchange  of 
views  with  those  entrusted  with  foreign  relations,  we  eliminate 
the  passion  and  prejudice  by  which  they  are  beclouded,  and 
seek  a settlement  in  a spirit  of  confidence  and  fair-dealing 
based  upon  a knowledge  of  and  a respect  for  the  views  of  our 
antagonist.  Should  we  not  adopt  the  method  of  Isaiah 
“Come,  now,  and  let  us  reason  together”  (Isaiah,  i:  18),  and  in 
so  doing  let  us  not  reason  with  unprofitable  talk  nor  with  • 
speeches  wherewith  we  can  do  no  good  (Job,  xv : 3) ; for  we 
may  be  assured  that  if  we  are  willing  and  obedient  we  shall 
eat  the  good  of  the  land,  but  if  we  refuse  and  rebel  we  shall 
be  devoured  with  the  sword  (Isaiah,  i:  19,  20). 

If  we  leave  the  language  of  scripture  and  seek  modern  author- 
ity, we  find  that  our  honored  Secretary  of  State  has  impressively 
told  us 

that  there  are  no  international  controversies  so  serious  that 
they  cannot  be  settled  peaceably  if  both  parties  really  desire 
peaceable  settlement,  while  there  are  few  causes  of  dispute  so 
trifling  that  they  cannot  be  made  the  occasion  of  war  if  either 
party  really  desires  war.  The  matters  in  dispute  between 
nations  are  nothing;  the  spirit  which  deals  with  them  is  every- 
thing.^ 

In  order  to  reach  this  understanding  so  essential  to  the 
settlement  of  international  as  well  as  private  controversies, 
it  is  indispensable  that  nations  and  their  peoples  be  brought 
closer  together.  The  Greeks  termed  the  foreigner  a barbarian, 
and  the  word  “barbarian,”  applied  indiscriminately  to  for- 
eigners, was  a badge  of  contempt;  but  had  the  foreigner  come 
into  close  and  peaceable  relations  with  them,  and  had  not 
their  relations  been  largely  those  of  war,  it  is  inconceivable  that 
the  open-minded  Greek  would  not  have  recognized  the  many 
admirable  qualities  possessed  by  the  foreigner  and  been  able 
to  meet  him  with  the  sympathy  begotten  of  a good  understand- 
ing. 

* Address  of  Hon.  Elihu  Root,  Secretary  of  State,  on  laying  the  corner- 
stone of  the  home  of  the  Bureau  of  the  American  Republics,  May  11,  1908; 
American  Journal  of  International  Law,  Vol.  II  (1908),  p.  624. 


680 


THE  HAGUE  PEACE  CONFERENCES 


If  we  shut  ourselves  out  from  our  neighbors,  we  can  neither 
expect  to  know  them  nor  that  they  should  know  us,  and  if  a 
nation  lives  in  isolation,  pursuing  its  ideal  without  intercourse 
with  the  outer  world,  can  we  reasonably  expect  either  that 
our  motives  be  understood,  or  that  the  foreigner  extend  to  us 
the  confidence  without  which  international  intercourse  is 
impossible?  Should  a man  desire  friends  he  must  show  him- 
self friendly,  and  if  we  desire  to  cultivate  friendship  within  the 
•family  of  nations,  we  must  show  that  our  aims  and  purposes 
are  not  inconsistent  with  the  progress  and  development  of 
foreign  nations,  and  that  we  extend  to  them  the  friendship 
which  we  expect  from  them  in  return.  We  maintain  that  we 
have  no  desire  for  foreign  conquest;  that  the  American  ideal 
is  individual  liberty  at  home  and  peace  abroad.  If  we  expect 
our  professions  of  friendship  and  our  desire  for  international 
peace  to  be  believed  and  acted  upon,  we  must  show,  not  merely 
by  words  alone  but  by  deeds,  which  speak  louder  than  words, 
that  we  live  up  to  our  professions  and  seek  to  extend  their 
blessings  to  foreign  countries.  To  quote  again  from  Washing- 
ton, while  he  was  still  known  as  the  General  and  not  the  Presi- 
dent and  statesman  of  the  young  republic: 

In  whatever  manner  the  nations  of  Europe  shall  endeavor  to 
keep  up  their  prowess  in  war,  and  their  balance  of  power  in 
peace,  it  will  be  obviously  our  policy  to  cultivate  tranquility  at 
home  and  broad;  and  to  extend  our  agriculture  and  commerce 
as  far  as  possible.^ 

We  cannot  hope  adequately  to  appreciate  foreign  nations 
if  we  keep  them  at  arm’s  length,  and,  confident  of  our  superior- 
ity, look  down  upon  them  as  inferiors.  Neither  can  we  under- 
stand them  and  rightly  gauge  their  motives  and  practices 
unless  we  study  their  history,  for  it  is  a mere  truism  to  state  that 
a nation  is  the  product  of  its  past;  nor  can  we  form  a proper 
conception  of  the  place  they  claim  and  actually  do  occupy 
in  the  world’s  affairs  unless  we  familiarize  ourselves  with  their 
ideals  in  literature,  in  art,  and  in  philosophy,  which,  after  all, 

* Letter  to  Thomas  Jefferson,  dated  August  31,  1788;  Ford's  Writings 
of  George  Washington,  Vol.  XI,  p.  320. 


FACTORS  THAT  MAKE  FOR  PEACE 


681 


are  the  traest  measure  of  a people’s  greatness.  If  we  would 
rightly  estimate  their  foreign  policy,  we  should  study  their 
domestic  institutions,  for  not  merely  the  form,  but  the  sub- 
stance of  foreign  policy  is  often  determined  by  national  limita- 
tions, the  form  and  forms  of  government  through  which  diplo- 
macy must  needs  speak.  It  is  not  given  to  everyone  to  obtain 
a first-hand  knowledge  of  foreign  countries  by  travel  and 
residence;  but  a mastery  of  foreign  languages  in  which  the 
thought  of  a nation  expresses  itself  would  enable  us  to  appre- 
ciate the  genius  of  the  people,  unobscured  by  the  inaccuracies 
and  infelicities  of  translation  by  which  the  essence  is  so  often 
beclouded  or  lost. 

We  must  not,  however,  imagine  that  we  have  familiarized 
ourselves  with  the  history  of  a nation  and  understand  the  forces 
which  have  made  it  what  it  is,  if  we  have  confined  ourselves 
to  the  doings  and  misdoings  of  reigning  sovereigns,  the  in- 
trigues of  court  life,  and  the  details  of  a campaign  or  a battle- 
field. The  greatness  of  a nation  lies  in  its  peaceful  develop- 
ment. Military  glory  is  evanescent  and  often  vanishes  with- 
out a trace  either  of  itself  or  of  the  country.  Sparta  is  dead 
beyond  power  of  reconstruction ; Athens,  the  home  of  industry 
and  commerce,  the  favorite  seat  of  literature  and  art,  lives 
in  the  world’s  history.  It  triumphed  with  the  triumphs  of 
peace,  not  of  war,  for  war  caused  its  decline,  not  its  greatness. 
England  is  the  land  of  Chaucer,  of  Shakespeare,  and  of  Milton, 
the  mother  of  constitutional  government,  the  center  of  indus- 
trial development.  Germany  is  not  wholly  an  armed  camp. 
Its  claim  to  greatness  rests  upon  a Luther,  a Beethoven,  a 
Goethe,  a Schiller,  a Kant.  We  must  insist,  therefore,  that 
history  be  studied  not  merely  as  a chronicle  of  battles,  but  as  a 
record  of  the  industrial  and  social,  intellectual  and  constitu- 
tional development.  Then  will  the  triumphs  of  peace  be 
seen  to  be  permanent,  the  triumphs  of  war  to  be  passing, 
although  its  evils  remain  to  perplex  and  torment  future 
generations.  A knowledge  of  history  thus  conceived,  a famil- 
iarity with  the  literature,  art,  and  philosophy  of  foreign 
countries,  a knowledge  of  the  foreign  languages,  which  are  as 


682 


THE  HAGUE  PEACE  CONFERENCES 


a key  to  the  national  treasure,  personal  intercourse,  foreign 
travel  and  residence  in  foreign  countries  are  assuredly  factors 
that  make  for  peace,  because  they  result  in  a broad,  compre- 
hensive understanding  of  those  who  are  to  us  as  neighbors. 

D.  PEACE  SOCIETIES,  INTERNATIONAL  CONGRESSES, 
CONFERENCES,  ASSOCIATIONS,  UNIONS 

It  has  been  shown  that  international  arbitration  is  the  gift 
of  the  Anglo-Saxon  and  that  it  dates  in  modern  form  from 
Jay’s  Treaty  of  1794.^  It  is  susceptible  of  proof  that  the 
great  movement  in  favor  of  peace  between  nations,  so  charac- 
teristic of  the  present  day,  originated  in  the  United  States, 
where  the  first  peace  society  was  founded  in  New  York  by 
David  Low  Dodge  and  a band  of  devoted  followers  who,  at 
the  very  close  of  the  war  between  Great  Britain  and  the 
United  States,  organized  the  New  York  Peace  Society  in 
August,  1815.  This  was  followed  by  the  Massachusetts  Peace 
Society,  organized  oh  December  26,  1815,  under  the  leader- 
ship of  Noah  Worcester,  whose  Solemn  Review  of  the  Custom 
of  War  has  had  great  influence  upon  the  movement.  The 
American  Peace  Society,  which  still  exists,  was  organized  in 
New  York  on  May  8,  1828,  on  the  initiative  of  William  Ladd, 
who,  by  his  many  labors,  to  quote  the  language  of  Charles 
Sumner,  “ enrolled  himself  among  the  benefactors  of  mankind.” 
The  movement  spread  to  England  where,  under  the  leadership 
of  the  Quaker  philanthropist,  William  Allen,  the  English  Peace 
Society,  the  first  in  Europe,  was  formed  on  June  14,  1816. 

It  is  unnecessary  to  trace  in  detail  the  history  of  these 
pioneer  societies.  It  is  sufficient  to  say  that  from  modest, 
not  to  say  humble  beginnings,  the  influence  of  these  pious 
and  God-fearing  men  has  made  itself  felt  in  the  remotest  por- 
tions of  the  globe.  They  were  indeed  the  light  of  the  world 
and,  like  the  city  set  on  a hill,  could  not  be  hid.  (Matt,  v, 
14.)  The  parent  societies  and  their  branches  have  not  been 
content  to  denounce  war  or  to  show  its  manifold  and  self- 
evident  evils;  they  have  proposed  in  season  and  out  of  season 

' See  Chapter  V,  supra,  pp.  190-212. 


FACTORS  THAT  MAKE  FOR  PEACE 


683 


a resort  to  peaceful  means  of  settlement,  whether  it  be  the 
extension  of  good  oflSices  and  mediation,  whether  it  be  arbitra- 
tion clauses  in  general  treaties,  or  the  meeting  of  Congresses 
for  the  codification  of  international  law,  and  the  establish- 
ment of  permanent  courts  for  its  administration  in  the  settle- 
ment of  international  disputes.  It  would  be  too  much  to  say 
that  their  informal  congresses,  largely  due  to  Elihu  Burritt 
and  Henry  Richard,  friends  and  apostles  of  peace,  in  which 
they  championed  the  cause  of  arbitration  and  insisted  upon 
the  establishment  of  a Court  of  Nations,  are  to  be  regarded  as 
the  immediate  or  natural  precursors  of  The  Hague  Conferences; 
but  it  is  due  to  them  to  state  that  their  congresses,  composed 
of  representatives  of  many  nations,  the  discussion  of  their 
plans  and  projects  within  the  conferences  and  in  the  press, 
familiarized  the  nations  with  their  views  and  created  a strong 
and  insistent  public  opinion  for  their  realization.  We  cannot 
measure  their  influence  by  mere  positive  results,  any  more 
than  we  can  properly  judge  the  possibilities  of  The  Hague 
Conferences  by  the  results  actually  accomplished.  By  bring- 
ing nations  closer  together,  by  exchanging  views  upon  these 
great  and  fundamental  subjects,  by  personal  intercourse  with 
representatives  of  foreign  countries,  and  by  activity  in  the 
press,  they  rendered  a service  to  the  cause  of  peace  which 
should  not,  which  cannot,  be  overlooked.  The  pacifist  today 
is  not  synonymous  with  the  Utopian  or  the  dreamer;  he  does 
not  find  himself  standing  alone  and  discredited  among  his 
fellow-countrymen,  but  in  the  center  of  a goodly  company 
composed  of  men  of  affairs  in  high  places,  with  men  who  follow 
the  profession  of  arms,  with  merchants  who  shun  war  as  inim- 
ical to  commerce  and  the  highest  interests  of  the  State,  and 
with  the  friends  of  mankind  irrespective  of  locality  and  irre- 
spective of  speech. 

But  the  peace  societies  and  the  professed  pacifists  have  not 
been  the  only  means  of  bringing  nations  and  their  representa- 
tives together,  albeit  in  an  informal  manner.  The  meeting  of 
every  international  association  and  learned  society,  whether  it 
be  in  connection  with  an  exposition  or  a world’s  fair,  whether 


684 


THE  HAGUE  PEACE  CONFERENCES 


composed  of  domestic  and  foreign  students  of  religious  ques- 
tions, or  of  specialists  in  social  science;  or,  again,  whether  it 
be  a congress  of  physicians,  such  as  the  International  Tuber- 
culosis Congress,  assembled  to  study  great  problems  and  by  an 
interchange  of  views  to  reach  conclusions  of  value;  or  whether 
it  be  an  assembly  of  people  interested  in  alleviating  the  need- 
less suffering  and  death  on  the  battlefield,  such  as  the  Red 
Cross  Conference  of  1864,  or  an  informal  meeting  of  the  mem- 
bers of  the  various  parliaments  of  the  world,  such  as  the 
Interparliamentary  Union  organized  by  two  professional  paci- 
fists, the  late  Randal  Cremer  and  the  venerable  Frederic  Passy, 
or  finally,  whether  it  be  a meeting  for  any  scientific  purpose 
in  which  representatives  of  foreign  countries  are  present, 
advances  the  cause  of  peace  by  bringing  leaders  of  thought, 
science  and  public  opinion  together,  and  promotes,  indeed 
creates,  good  understanding  between  nations. 

We  are  so  accustomed  to  these  meetings  that  we  attach 
little  importance  to  them ; yet  they  are  international  events  of 
no  mean  importance.  The  Crystal  Palace  of  1852,  the  Centen- 
nial Exhibition  of  1876,  the  Universal  Expositions  at  Paris  in 
1878  and  1889,  the  Chicago  World’s  Fair  of  1893,  the  Pan- 
American  Exposition  of  1901,  the  St.  Louis  World’s  Fair  of 
1904  to  celebrate  the  peaceful  acquisition  of  the  vast  stretch 
of  territory  embraced  in  the  Louisiana  Purchase,  the  James- 
town Exposition  of  1907,  brought  the  nations  together,  and 
in  so  doing  made  for  peace. 

Special  mention  should  be  made  of  the  Institute  of  Interna- 
tional Law,  founded  at  Ghent  in  1873,  composed  of  leading 
representatives  of  international  law  in  the  various  nations 
recognizing  and  applying  international  law  in  their  foreign 
relations,  for  the  scientific  study  of  international  law  and  the 
regular  and  scientific  development  of  its  principles.  The 
Institute  owed  its  origin  to  a letter  written  by  M.  Rolin- 
Jaequemynsin  1873  and  sent  to  some  twenty  jurists,  proposing 

a private  meeting  of  a limited  group  of  men  already  known  in 
the  science  of  international  law  by  their  writings  or  by  their  acts, 
and  belonging  as  much  as  possible  to  different  countries. 


FACTORS  THAT  MAKE  FOR  PEACE 


685 


Hitherto,  said  M.  Rolin-Jaequemyns,  the  movement  toward 
the  regularization  of  international  relations  has  manifested 
itself  in  two  ways: 

(a)  By  diplomatic  action,  that  is  to  say,  by  the  proceedings, 
the  correspondence,  the  conventions,  or  the  congresses  of  repre- 
sentatives officially  accredited  by  certain  nations. 

(b)  By  individual  scientific  action,  that  is  to  say,  by  writings 
having  for  their  object  to  express,  in  a precise,  methodical,  and 
reasoned  form,  the  whole  or  a part  of  the  rules  which  their  author 
considers  as  those  which  are  followed,  or  which  ought  to  be 
followed,  in  international  relations. 

Diplomatic  action  originally  intervened  only  after  the  termi- 
nation of  wars,  in  order  to  discuss  and  to  determine  the  condi- 
tions of  peace.  At  present  it  tends,  with  a goodwill  not  always 
sterile,  to  meet  requirements  of  a higher  order.  Thus  we  have 
seen  it  already  more  than  once  endeavor 

].  To  trace  certain  general  rules  dictated  by  a spirit  of 
humanity  and  justice,  and  going  beyond  the  political  neces- 
sities of  the  moment. 

2.  To  admit  into  the  domain  of  positive  international  law 
an  increasing  number  of  relations  which  till  then  were  held  to 
belong  to  national  law. 

3.  To  accomplish  the  arrangement  of  international  differ- 
ences by  pacific  arbitration. 

Individual  scientific  action,  in  a manner  equally  progressive, 
has  more  and  more  recognized  the  obligation  which  lies  upon  it 
to  give  a reasoned  direction  to  public  opinion  by  formulating 
rules  which,  as  far  as  possible,  exhibit  the  characteristics  of 
certitude  and  practical  eflicacy.  Already  some  jurisconsults 
have  adopted  for  their  writings  the  form  of  veritable  codes.  It 
would  seem,  then,  that  for  the  science  of  international  law  we 
have  arrived  at  an  epoch  corresponding  to  that  of  the  appearance 
of  the  history  of  the  national  law  of  several  peoples  of  those 
collections  (recueils)  due  to  private  sources,  and  which  have 
served  as  a transition  between  simple  customary  tradition  and 
homologous  customs  or  written  law.  But  these  progressive 
aspirations  of  the  two  grand  factors  of  international  law  come  in 
practice  in  collision  with  the  gravest  obstacles.  Diplomacy  is 
impeded  by  conflicts  at  least  apparent  between  the  political 
interests  of  the  particular  peoples  who  are  the  subjects  of  the 
law,  and  the  collective  interest  of  international  society;  individ- 
ual scientific  action  is  rendered  impotent  by  the  fact  that 
isolated  speculations  or  works,  however  great  may  be  the  merit 
of  the  reputation  of  the  man  whose  name  is  attached  to  them, 
do  not  carry  sufficient  weight  to  dominate  passions  and  triumph 
over  prejudices 

Is  there  nothing  then  to  be  done?  The  object,  on  the  con- 
trary, which  I have  in  view,  is  to  call  the  attention  of  the 


G86 


THE  HAGUE  PEACE  CONFERENCES 


eminent  persons  to  whom  this  writing  is  communicated  to  the 
necessity,  the  possibility,  and  the  opportunities  of  giving  body 
and  life,  alongside  of  diplomatic  action  and  individual  scientific 
action,  to  a new  and  third  factor  of  international  law:  to  col- 
lective scientific  action.^ 

The  Institute  of  International  Law  has  lived  up  to  the  hope 
and  ambition  of  its  founders,  and  there  is  scarcely  a doc- 
trine of  international  law  which  has  not  received  examina- 
tion by  its  members  and  has  not  been  improved  and  developed. 
Its  conclusions  merely  voice  the  views  of  its  individual  mem- 
bers and  possess  no  legislative  or  binding  force,  but  the 
weight  of  its  reasoning  and  the  soundness  of  its  judgment 
have  caused  the  Institute  to  be  cited  with  respect  by  writers 
of  authority,  by  ministers  of  foreign  affairs, ^ and  to  win  general 
approval  and  acceptance. 

The  International  Law  Association  was  founded  in  1873 
as  an  organization  for  the  reform  and  codification  of  the  Law 
of  Nations.  It  admits  to  membership  all  who  take  an  inter- 
est in  the  objects  of  the  Association,  and  although  the  mem- 
bership is  largely  English,  its  annual  meetings  are  held  in 
various  cities  of  the  continent  of  Europe.  The  International 
Law  Association  is  broader  in  its  foundation  than  the  Institute. 
Its  membership  is  open  to  others  than  specialists,  and  its 
work  though  less  scientific  is  nevertheless  important.  Its 
meetings  bring  together  students  and  scholars  from  many 
countries,  and  it  thus  exercises  no  inconsiderable  influence  in 
molding  international  opinion.  Every  society  of  interna- 
tional law,  whether  it  be  national  in  origin  and  influence,  and 
every  journal  of  international  law,  whatever  the  language  in 
which  it  is  published,  is  a factor  that  makes  for  peace. 

It  would  be  wearisome  to  enumerate  the  many  conferences 
called  by  Governments  which  have  resulted  in  the  formation  of 
international  unions  and  have  laid  the  foundation  of  a law  of 

^ Lorimer’s  Studies  National  and  International,  pp.  79-81. 

^For  one  of  many  instances  in  our  diplomatic  correspondence,  see  Sec- 
retary Olney’s  instruction  in  the  Hollander  Case,  Moore’s  International 
Law  Digest,  Vol.  IV,  pp.  102,  et  seq. 


FACTORS  THAT  MAKE  FOR  PEACE 


687 


international  administration,  which  fall  naturally,  according 
to  Professor  Reinsch’s  classification,  into  seven  groups:  I. 
Unions  dealing  with  the  subject  of  communication,  such  as  the 
Telegraphic  Union the  Universal  Postal  Union,  composed  of 
55  States  and  colonies,  which  may  be  considered  as  the  model 
union  f the  International  Union  of  Railway  Freight  Trans- 
portation;® the  Conferences  Concerning  Navigation;^  II. 
Unions  to  Serve  Economic  Interests,  such  as  the  Metric 
Union;®  the  Union  for  Industrial,  Literary  and  Artistic  prop- 
erty;® the  Union  for  the  Publication  of  Customs  Tariffs;^ 
the  various  Conferences  for  the  International  Protection  of 
Labor;®  and  the  Conferences  Concerning  the  Sugar  Industry,® 
Agriculture,^®  and  Insurance. “ III.  Sanitation  and  Prison 
Reform,  including  the  International  Prison  Congress,  “ Inter- 
national Sanitation,  “ and  the  Geneva  Convention  so  frequently 
mentioned. “ IV.  Police  Powers,  under  which  heading  fall 
the  Questions  of  the  Regulation  of  Fisheries,^®  the  Protection 
of  Submarine  Cables,^®  the  African  Trade  and  Liquor  Traffic, 
the  Repression  of  the  White  Slave  Trade. ^®  V.  Scientific 
Purposes,  embracing,  in  addition  to  commissions  and  bureaus 
previously  mentioned,  the  International  Geodetic  Associa- 
tion.i®  VI.  International  Commissions  and  Unions  for 
Special  and  Local  Purposes,  such  as  the  Commissions  for  the 
Regulation  of  the  Navigation  of  the  Rhine  and  Danube,  the 
Berlin  Conference  of  1885  which  instituted  the  Commission 
for  the  Congo.®®  VII.  The  American  International  Unions, 


^For  details  of  this  important  iatemational  administrative  union,  see 
Reinsch’s  International  Unions  and  their  Administration  of  International 
Law  (1907),  Vol.  I,  pp.  582-585 


^ Ib.,  pp.  586-589. 
’ Ib.,  pp.  589-593. 
^ Ib.,  593-594. 

^ Ib.,  p.  595. 

' Ib.,  pp.  595-597. 
^ Ib.,  pp.  597-598. 
* Ib.,  pp.  598-602. 
“ Ib.,  pp.  602-604. 

Ib.,  pp.  604-608. 
“ Ib.,  pp.  608-609. 


“ Ib.,  pp.  609-610. 
Ib.,  pp.  610-612. 
Ib.,  pp.  612-613. 
*5  Ib.,  p.  613. 

Ib.,  pp.  613-14. 
Ib.,  pp.  614r-615. 
‘s  Ib.,  pp.  615-616. 

Ib.,  pp.  616-618. 
2“  Ib.,  pp.  618-621. 


688 


THE  HAGUE  PEACE  CONFERENCES 


culminating  in  the  International  Union  of  American  Republics, 
whose  executive  organ  is  the  Bureau  of  the  American  Repub- 
lics located  at  Washington. ^ 

In  concluding  his  valuable  paper  on  the  subject  of  Interna- 
tional Unions  and  their  Administration,  Professor  Reinsch 
understates  rather  than  overstates  the  truth  when  he  says 
that  “we  cannot  fail  to  be  powerfully  impressed  with  the 
importance  which  these  relations  have  gained  in  modem 
international  life.”  They  are  drawing  the  world  closer 
together;  for  the  independence  of  nations  they  are  sub- 
stituting the  principle  of  interdependence  and  at  the  same 
time  they  are  laying  the  foundations  of  that  good  under- 
standing which  is  indispensable  to  a permanent  peace.^  The 
Conferences  at  The  Hague  are  a continuation:  a culmination 
rather  than  a departure. 

We  have  thus  seen  that  the  independence  of  nations  is 
giving  way,  slowly  and  unconsciously  it  may  be,  to  the  inter- 
dependence of  nations;  that  international  commerce  flourishes 
in  peace,  is  checked  by  war  and  is,  therefore,  a factor  that 
makes  for  peace;  that  the  various  peace  societies,  international 
congresses  due  to  private  initiative,  scientific  meetings  and 
associations,  and  the  various  conferences  convoked  by  Govern- 
ments for  a nonpolitical  purpose  advance  the  cause  of  peace 
by  drawing  the  nations  closer  together  for  a common  purpose. 
They  are  factors  that  make  for  peace ; they  show  its  advantage, 
indeed  its  necessity ; they  have  created  in  various  ways  and  in 
various  degrees  a public  sentiment  in  favor  of  peace,  and  they 
furnish  arguments  and  authority  to  the  statesmen  who  seek  to 


' Reinsch’s  International  Unions  and  their  Administration  of  Inter- 
national Law  (1907),  Vol.  I,  pp.  621-622;  Reinsch’s  International  Adminis- 
trative Law  and  National  Sovei eignty,  ibid.,  Vol.  Ill,  pp.  1-45  (1909). 

^ See,  also,  the  admirable  article,  by  the  Hon.  Simeon  E.  Baldwin,  on 
The  International  Conferences  and  Congresses  of  the  Last  Century  as 
Forces  Working  Toward  the  Solidarity  of  the  World,  American  Journal  of 
International  Law  (1907),  Vol.  I,  pp.  566-578.  And  see,  especially,  the 
Appendix  to  Judge  Baldwin’s  Article,  ibid.,  pp.  808-829,  for  a chronological 
and  analytical  list  of  the  various  nonpolitical  conferences  of  the  nineteenth 
century. 


FACTORS  THAT  MAKE  FOR  PEACE 


689 


create  institutions  by  which  peace  may  be  maintained,  inter- 
national controversies  settled,  and  war  rendered  less  frequent. 

E.  IMPORTANCE  OF  CONSTITUTIONAL  OR  REPRESENTATIVE 
GOVERNMENTS 

In  his  essay  on  Perpetual  Peace,  published  in  1795,  the 
philosopher  Kant,  proposed  as  the  very  first  article  of  the 
treaty  by  which  permanent  peace  is  to  be  secured  that  the 
civil  constitution  of  every  State  shall  be  republican.  An 
examination  of  the  context  shows  that  the  philosopher  did 
not  use  republican  in  our  sense  of  the  word,  but  as  synony- 
mous with  constitutional  and  representative  government  in 
which  the  sovereign  or  head  of  the  State  possesses  limited 
power,  in  which  the  many  control  the  few  and  determine  the 
policy  and  measures  whose  consequences  they  must  necessarily 
bear.  "Republicanism,”  he  says,  "is  that  form  of  govern- 
ment in  which  the  executive  power  is  separated  from  the 
legislative.”  Writing  in  the  throes  of  the  French  Revolution, 
when  the  sword  was  the  measure  if  not  the  origin  of  right, 
the  little  man  of  Konigsberg  saw  that  nothing  was  to  be  hoped 
from  nations  and  States  in  which  an  autocrat  determined  the 
fate  of  the  country,  and  in  which  popular,  that  is  to  say  repre- 
sentative, government,  controlled  by  public  opinion,  did  not 
exist. 

After  showing  that  a republican,  that  is,  representative, 
form  of  government  is  the  only  one  consistent  with  the  princi- 
ples of  freedom,  with  the  dependence  of  all  as  subjects  upon  a 
common  legislature,  and  with  the  principle  of  equality  of  the 
citizens  of  the  State,  Kant  says  that  "the  republican  constitu- 
tion, in  addition  to  the  fact  that  it  springs  out  of  the  pure  con- 
cept of  right,  ” gives  promise  of  realizing  the  desired  end,  namely, 
perpetual  peace.  The  reason  for  this,  he  says,  may  be  stated 
as  follows: 

Where  the  consent  of  the  citizens  of  the  State  is  required  to 
determine  whether  there  shall  be  war  or  not,  as  must  necessarily 
be  the  case  where  the  republican  constitution  is  in  force, 


690 


THE  HAGUE  PEACE  CONFERENCES 


nothing  is  more  natural  than  that  they  should  hesitate  much 
before  entering  on  so  perilous  a game.  If  they  do  so,  they  must 
take  upon  themselves  all  the  burdens  of  war,  that  is,  the  fighting, 
the  defraying  of  the  expenses  of  the  war  out  of  their  own  posses- 
sions, the  reparation  of  the  destruction  which  it  causes,  and, 
greatest  of  all,  the  burden  of  the  debts  incurred,  an  endless 
burden  because  of  the  continual  prospect  of  new  wars  and  one 
which  therefore  embitters  peace  itself.  On  the  contrary,  in  a 
State  where  the  government  is  not  republican  and  the  subject 
not  a voting  citizen,  war  is  the  easiest  thing  in  the  world  to 
enter  upon,  because  the  ruler  is  not  a fellow  citizen  of  the  State, 
but  its  owner.  War  does  not  therefore  interfere  the  least  with 
his  table  enjoyments,  his  hunting,  his  pleasure  castles,  his 
court  feasts,  and  the  like.  He  decides  lightly  to  enter  upon  it, 
as  if  it  were  a sort  of  pleasure  party,  and  as  to  its  propriety  he 
without  concern  leaves  the  justification  of  it  to  the  diplomatic 
corps  who  are  always  ready  to  find  him  excuses. 

It  may  be  that  Kant  was  over-sanguine  of  the  peaceable- 
ness of  constitutional  governments,  but  it  is  a fact  that  free 
and  representative  governments  prefer  peace  to  war  and  the 
settlement  of  international  controversies  by  arbitration. 
Great  Britain  and  the  United  States  have  arbitrated  more 
cases  than  all  other  countries  of  the  world,  and  it  is  but  the 
sober  truth  to  say  that  modern  arbitration  is  the  gift  of  the 
Anglo-Saxon.  Kant  was  therefore  right  in  the  main,  because 
the  power  that  controls  the  purse  controls  the  sword,  and  in  a 
constitutional  and  representative  form  of  government  the 
head,  whether  he  be  called  king  or  president,  is  the  servant  of 
the  people.  An  enlightened  and  educated  public  opinion  in 
favor  of  peace  has  sprung  up  in  every  constitutional  nation, 
and  Kant  is  correct  in  regarding  republican,  that  is,  represent- 
ative government,  which  permits  the  formation  of  a public 
opinion,  whose  voice  it  hears  and  obeys,  as  a factor  that  makes 
for  peace. 

F.  GROWING  SENSE  OF  USELESSNESS  OF  WAR 

A factor  making  for  peace  which  cannot  be  overlooked  and 
which  is  worthy  of  the  greatest  consideration  is  the  growing 

* Kant’s  Perpetual  Peace,  Dr.  Trueblood’s  translation,  published  by 
the  American  Peace  Society,  pp.  11-12. 


FACTORS  THAT  MAKE  FOR  PEACE 


691 


sense  of  the  uselessness  of  war,  which  not  only  fails  to  decide 
the  right  or  wrong  involved  in  a controversy,  disarranges 
neutral  trade  and  commerce  and  crushes  the  belligerents 
under  a burden  of  economic  loss  and  taxation,  but  also  weakens 
a nation  by  the  sacrifice  of  those  elements  which  are  fittest  to 
survive  and  upon  which  the  type  of  the  nation  as  well  as  the 
individual  depends.  The  Laws  of  Nature  do  not  apply  solely 
to  the  inferior  animals.  Variation,  heredity,  segregation  and 
selection  determine  the  human  being  just  as  surely  as  they 
determine  the  quality,  the  character,  in  a word,  the  breed  of 
the  animal.  We  do  not  improve  the  stock  from  the  feeble, 
the  broken,  the  dull  of  wit,  the  coarse  of  limb,  to  use  the  lan- 
guage of  Dr.  Jordan,^  and  we  cannot  develop  a race  of  men, 
equal  to  the  demands  of  civilization  and  capable  of  advancing 
it,  from  the  scullion,  the  outcast,  the  weakling,  the  coward 
and  the  slave. 

A standing  army  in  time  of  peace  is  an  economic  loss.  The 
nation  in  arms  and  in  action  sacrifices  the  flower  of  the  nation, 
the  very  bud  and  blossom  of  mankind.  Modern  science  has 
shovm  this  beyond  peradventure,  and  the  first  enunciation  of 
this  great  and  fundamental  truth,  which  must  give  us  pause 
if  we  will  save  civilization  from  the  battlefield,  is  due  to  the 
sagacious  Dr.  Franklin,  who  saw  through  the  forms  of  things 
and  laid  bare  the  substance.^ 

Of  an  interview  of  October  2,  1783,  between  Dr.  Franldin 
and  John  Baynes,  Romilly’s  friend,  Mr.  Baynes  gives  the 
following  account  in  his  diary : 

Insensibly  we  began  to  converse  on  standing  armies,  and  he 
seeming  to  express  an  opinion  that  this  system  might  some  time 
or  other  be  abolished,  I took  the  liberty  to  ask  him  in  what 

^ David  Starr  Jordan’s  Human  Harvest:  A Study  of  the  Decay  of 
Races  through  the  Survival  of  the  Unfit,  1907,  published  by  the  American 
Unitarian  Association  of  Boston  (p.  25). 

^ Sir  Samuel  Ronully  was  not  only  a good  judge  of  men,  but  in  his  long 
career  met  the  celebrities  of  his  generation.  In  his  autobiography  he  thus 
speaks  of  the  impression  produced  upon  him  by  the  interview  which  Dr. 
Franklin  gave  to  Romilly  and  Baynes  in  1783:  “Dr.  Franklin  was  indul- 


692 


THE  HAGUE  PEACE  CONEERENCES 


manner  he  thought  it  could  be  abolished;  that  at  present  a com- 
pact among  the  Powers  of  Europe  seemed  the  only  way,  for  one 
or  two  Powers  singly  and  without  the  rest  would  never  do  it; 
and  that  even  a compact  did  not  seem  likely  to  take  place, 
because  a standing  army  seemed  necessary  to  support  an  abso- 
lute government,  of  which  there  were  many  in  Europe.  “That 
is  very  true,”  said  he;  “I  admit  that  if  one  Power  singly  were  to 
reduce  their  standing  army,  it  would  be  instantly  overrun  by 
other  nations;  but  yet  I think  that  there  is  one  effect  of  a stand- 
ing army  which  must  in  time  be  felt  in  such  a manner  as  to 
bring  about  the  total  abolition  of  the  system.”  On  my  asking 
what  the  effect  was  to  which  he  alluded,  he  said  he  thought  they 
diminished  not  only  the  population,  but  even  the  breed  and  the 
size  of  the  human  species.  “For,”  said  he,  “the  army  in  this 
and  every  other  country  is  in  fact  the  flower  of  the  nation — all 
the  most  vigorous,  stout,  and  well-made  men  in  a kingdom  are 
to  be  found  in  the  army.  These  men  in  general  never  marry.”^ 

In  the  course  of  the  same  interview  Mr.  Baynes  men- 
tioned what  seemed  to  him  to  be  an  omission  in  the  Con- 
stitution of  America,  namely,  the  want  of  any  sufficient  armed 
force.  Dr.  Franklin,  according  to  Baynes,  seemed  to  think 
the  objection  of  no  great  weight. 

“For,”  said  he,  “America  is  not,  like  any  European  power, 
surrounded  by  others,  every  one  of  which  keeps  an  immense 
standing  army;  therefore  she  is  not  liable  to  attacks  from  her 
neighbors — at  least,  if  attacked  she  is  on  an  equal  footing  with 
the  aggressor,  and  if  attacked  by  any  distant  power  she  will 
always  have  time  to  form  an  army.  Could  she  possibly  be  in  a 
worse  situation  than  at  the  beginning  of  this  war,  and  could  we 
have  had  better  success?” 

gent  enough  to  converse  a good  deal  with  us,  whom  he  observed  to  be 
young  men  very  desirous  of  improving  by  his  conversation.  Of  aU  the 
celebrated  persons  whom,  in  my  life,  I have  chanced  to  see,  Dr.  Franklin, 
both  from  his  appearance  and  his  conversation,  seemed  to  me  the  most 
remarkable.  His  venerable  patriarchal  appearance,  the  simplicity  of  his 
manner  and  language,  and  the  novelty  of  his  observations,  at  least  the 
novelty  of  them  at  that  time  to  me,  impressed  me  with  an  opinion  of  him 
as  of  one  of  the  most  extraordinary  men  that  ever  existed.” — The  Memoirs 
of  the  Lifeof  Sir  Samuel  RomUly,  by  his  sons,  2 vol.ed.,  1842  (Vol.  I,  p.69). 

' Printed  originally  in  Memoirs  of  the  Life  of  Sir  Samuel  Romilly,  by  his 
Sons,  Vol.  I,  Appendix;  reprinted  in  Bigelow’s  Works  of  Benjamin  Franklin, 
Vol.  VIII,  p.  420. 


FACTORS  THAT  MAKE  FOR  PEACE 


693 


History  is  but  a commentary  on  the  statement  of  Dr.  Frank- 
lin, for  standing  armies  and  their  destruction  in  battle  have  sacri- 
ficed the  fit  to  the  unfit  and  ruined  the  nation  on  the  battlefield. 
The  history  of  Rome  is  nothing  but  the  gradual  elimination  of 
the  fit  and  the  perpetuation  of  the  scullion,  the  weakling,  the 
coward  and  the  outcast.  Out  of  every  hundred  thousand 
strong  men,  eighty  thousand  were  slain.  Out  of  every  hundred 
thousand  weaklings,  ninety  to  ninety-five  thousand  were 
left  to  survive.^  The  German  conquered  the  Roman,  not 
because  Rome  was  weakened  by  luxury  and  self-indulgence, 
which  affected  but  a small  percentage  of  the  population,  but 
because  the  barbarian  was  physically  fit,  whereas  Rome, 
depleted  by  war,  was  unequal  to  the  contest.* 

We  may  close  our  eyes  to  history  and  refuse  to  listen  to 
its  teachings,  but  the  fact  is  and  always  has  been  that  war 
deprives  a nation  of  the  most  fitted  to  maintain  its  existence, 
and  a succession  of  wars  ruins  the  stamina  of  a nation  no 
matter  by  what  sophistry  we  may  disguise  the  fact  or  explain 
the  consequence. 

It  is  not  maintained  or  asserted  that  war  may  not  draw  out 
the  higher  instincts  of  a nation ; that  courage  and  self-sacrifice, 
of  which  we  are  proud  and  whose  traditions  we  cherish,  are 
produced  and  made  prominent  in  war  in  ways  impossible  in 
peace;  but  the  misfortune  and  the  scourge  of  war  lie  in  the 
fact  that  these  very  qualities  are  sacrificed  and  lost;  for, 
to  repeat  the  language  of  Dr.  Franklin:  ‘Hhe  army  is  the 
flower  of  the  nation.  All  the  most  vigorous,  stout,  and  well- 
made  men  in  a kingdom  are  to  be  found  in  the  army.  These 
men  in  general  never  marry.”  Those  who  dispute  the  truth  of 
this  assertion  and  the  natural  deductions  from  it  are  referred 
to  Dr.  Jordan’s  Human  Harvest.  The  realization  of  this 

‘ Dr.  Otto  Seeck’s  calculation  in  Ms  GescMchte  des  Untergangs  der 
antiken  Welt,  Vol.  1,  p.  303. 

^ Die  Ausrottung  der  Besten,  die  Jenen  schwacheren  Volkern  die  Ver- 
nichtung  brachte  hat  die  starken  Germanen  erst  befahigt,  auf  den  Triim- 
mem  der  antiken  Welt  neue  dauemde  Gemeinschaften  zu  errichten — 
Dr.  Otto  Seeck’s  Geschichte  des  Untergangs  der  antiken  Welt,  Vol.  1, 
p.  308. 


694 


THE  HAGUE  PEACE  CONFERENCES 


state  of  affairs  will  one  day  reach  the  people,  and  it  cannot 
be  doubted  that  they  will  save  themselves  and  their  countries 
by  insisting  upon  the  settlement  of  international  disputes  in 
a way  which  does  not  deprave  humanity  and  jeopardize 
civilization. 

G.  SENTIMENT  IN  FAVOR  OF  ARBITRATION  AND  JUDICIAL 
SETTLEMENT  OF  INTERNATIONAL  DISPUTES 

A great  factor  making  for  peace — perhaps  the  most  hope- 
ful at  the  present  day — is  the  widespread  sentiment  in  favoi 
of  arbitration,  and  the  desire  to  substitute  for  armed  conflict 
between  nations  the  judicial  processes  and  machinery  which 
have  abolished  private  war  between  individuals  and  which  are 
capable  of  rendering  war  between  nations  less  frequent,  if 
they  cannot  wholly  abolish  it  as  an  extraordinary  legal  remedy. 
In  the  process  from  unrestricted  self-help  to  redress  a wrong 
or  to  secure  the  possession  of  a right  to  the  establishment 
of  courts  of  justice,  controlled  and  maintained  by  the  State 
for  the  repression  of  crime  and  for  the  administration  of  jus- 
tice between  man  and  man,  four  stages  of  development  are 
clearly  discernible,  although  it  would  be  as  difl&cult  to  deter- 
mine the  distinction  between  the  stages  as  it  would  be  to  the 
eye  to  note  the  transition  from  darkness  to  daylight.  These 
stages  have  been  admirably  stated  and  summarized  by  Pro- 
fessor Lawrence  in  a remarkable  essay  on  the  Evolution  of 
Peace, ^ from  which  a paragraph  is  quoted: 

At  first  every  man  has  to  protect  himself,  and  the  injured 
party  depends  entirely  for  redress  upon  his  own  and  his  family’s 
power  to  secure  it.  Then  the  customs  of  the  community,  and 
the  laws  promulgated  by  its  rulers,  impose  limitations  upon  the 
right  of  private  vengeance.  It  is  regulated  and  directed,  but 
not  forbidden.  Though  limited  in  operation,  it  still  remains 
the  chief  if  not  the  only  means  of  punishing  wrong.  The  third 
stage  is  reached  when  side  by  side  with  it  there  exists  in  full 
operation  an  alternative  method  of  doing  justice  between  man 

^ Essays  on  Some  Disputed  Questions  in  Modem  International  Law, 
by  T.  J.  Lawrence  (1885),  2d  ed.,  pp.  234-277. 


FACTORS  THAT  MAKE  FOR  PEACE 


695 


and  man,  and  making  criminals  suffer  for  their  misdeeds.  This 
method  is  that  of  trial  before  impartial  State  tribunals,  who 
decide  each  case  on  its  merits,  as  administrators  of  a passionless 
law.  So  great  are  the  advantages  of  this  system  that  both 
spiritual  and  temporal  rulers  bend  their  energies  to  the  task  of 
securing  its  universal  adoption.  In  time  their  success  is  com- 
plete; and  the  fourth  stage  is  marked  by  the  entire  abolition  of 
the  old  right  of  unregulated  and  self-inflicted  vengeance.  Look- 
ing back  on  the  record  of  human  progress,  we  can  see  that  the 
passions  of  early  man  were  so  strong,  and  his  reason  so  weak, 
that  nothing  but  the  wild  justice  of  revenge  would  satisfy  him. 
We  trace  the  gradual  rise  of  State  authority,  as  organization 
proved  to  be  a mighty  power  in  the  struggle  for  existence.  We 
observe  how  that  authority  first  sought  to  regulate  the  use  of 
force  in  private  feuds,  and  then  provided  an  alternative  in  the 
tribunals  which  it  established  and  armed  with  coercive  power. 
The  next  step  shows  us  the  survival  of  the  fittest  in  the  increase 
of  the  authority  of  the  courts  of  law,  and  the  decay  of  private 
war.  At  last  civilization  banishes  the  vendetta  altogether,  and 
civilized  man  regards  it  as  a mark  of  barbarism,  when  he  ob- 
serves it  in  less  advanced  communities.* 

Unconsciously  the  same  evolution  is  taking  place  in  the 
history  and  practice  of  war.  In  the  first  stage,  real  or  fancied 
aggressions  give  rise  to  war  between  tribe  and  tribe,  nation  and 
nation,  and  hostilities  are  conducted  according  to  the  whim 
and  pleasure  of  the  contending  parties  without  restriction 
upon  the  means  and  method  of  warfare.  As  between  individ- 
uals, so  between  masses  of  men;  unbridled  force,  unlimited 
self-help  punish  the  wrong  and  secure  the  enjoyment  of  the 
right.  In  the  next  stage,  to  quote  the  language  of  Professor 
Lawrence,  “ we  see  in  the  record  of  the  blood  feud,  regulation 
and  limitation  of  individual  impulses  by  the  custom  of  the 
community  or  the  commands  of  its  rulers.”  Self-help  which 
permitted  judicial  combat  is  allowed,  but  it  is  modified  by 
custom  and  regulated  by  law.  The  usages  and  customs  of 
war,  accepted  tacitly  or  expressly  by  nations,  the  regulation  of 
war  by  declaration  or  legislative  enactment  of  conferences 
check  the  excesses  and  abuses  of  the  system  while  recognizing 
and,  as  it  were,  legalizing  its  existence.  In  the  third  stage, 

* Essays  on  Some  Disputed  Questions  in  Modern  International  Law, 
by  T.  J.  Lawrence  (1885),  2d  ed.,  pp.  255-256. 


696 


THE  HAGUE  PEACE  CONFERENCES 


courts  of  justice  are  created  for  the  repression  of  crime  and 
the  redress  of  civil  injuries  and  exist  side  by  side  with  self- 
help  and  a regulated  judicial  combat.  The  remedy  adminis- 
tered in  the  former  triumphs  not  only  by  the  reasonable- 
ness of  its  methods,  but  by  the  certainty  and  efficacy  of  its 
remedy.  Arbitration  between  nations,  in  which  right  and 
justice  are  ascertained  by  a judicial  proceeding,  the  creation 
of  the  permanent  panel  of  judges  by  the  First  Hague  Confer- 
ence from  which  a temporary  tribunal  may  be  constituted 
for  the  settlement  of  international  difficulties  by  judicial  and 
therefore  peaceful  means,  mark  the  third  stage  and  render  the 
analogy  between  private  and  public  warfare  complete.  Self- 
redress lingers,  but  its  exercise  shocks  the  public  conscience. 
The  judicial  proceeding  appeals  to  the  community  at  large, 
and  the  court  triumphs  because  it  proves  itself  to  be  the  fittest 
means  to  maintain  and  administer  justice. 

May  we  not  hope  the  same  development  in  international  law 
as  in  national  law,  namely,  that  arbitration  and  judicial  pro- 
cedure will  persuade  nations,  as  it  has  convinced  communities, 
of  its  reasonableness  and  superiority  as  a method  of  adjusting 
controversies,  and  that  the  resort  to  arms,  which  is  in  reality 
self-redress,  may  become  increasingly  less  frequent?  If  we 
bear  in  mind  the  fact  that  private  arbitration  produced  the 
Roman  judiciary,  and  if  we  take  note  of  the  sentiment  in  favor 
of  public  arbitration,  is  it  not  within  the  bounds  of  reason  to 
predict  that  international  arbitration  will  develop  an  interna- 
tional judiciary,  and  that  the  Ishmaelite  shall  be  an  outcast  in 
the  family  of  nations  just  as  surely  as  the  desperado  is  an  out- 
law in  modem  society?  Lest  this  expectation  be  denounced  as 
a dream  and  the  utterance  of  a visionary,  I quote  the  language 
of  one  who,  in  word  and  deed,  was  eminently  practical.  In 
a letter  to  the  Universal  Peace  Union  of  Philadelphia  in  Decem- 
ber, 1879,  General  Grant  wrote : 

Although  educated  and  brought  up  as  a soldier,  and  prob- 
ably having  been  in  as  many  battles  as  anyone,  certainly  as 
many  as  most  people  could  have  been,  yet  there  was  never  a 
time  nor  a day  when  it  was  not  my  desire  that  some  just  and  fair 


FACTORS  THAT  MAKE  FOR  PEACE 


697 


way  should  be  established  for  settling  difl&culties,  instead  of 
bringing  innocent  persons  into  conflict,  and  thus  withdrawing 
from  productive  labor  able-bodied  men  who,  in  a large  majority 
of  cases,  have  no  particular  interest  in  the  subject  for  which 
they  are  contending.  I look  forward  to  a day  when  there  will 
be  a court  established  that  shall  be  recognized  by  all  nations, 
which  will  take  into  consideration  all  differences  between  nations 
and  settle  by  arbitration  or  decision  of  such  court  these  ques- 
tions. 


CHAPTER  XV 


UNFINISHED  BUSINESS  OF  THE  SECOND  CONFER- 
ENCE. IMMUNITY  OF  PRIVATE  PROPERTY 
CONTRABAND  BLOCKADE  DESTRUCTION  OF 
NEUTRAL  PRIZES 

The  foregoing  examination  of  the  positive  results  of  the 
Second  Conference  shows  that  the  First,  Second,  and  Third 
Commissions  succeeded  in  drafting  and  presenting  to  the  Con- 
ference projects  dealing  with  the  various  subjects  entrusted 
to  their  consideration,  whereas  the  Fourth  Commission,  deal- 
ing with  intricate  or  complicated  questions  of  naval  warfare, 
involving  largely  the  rights  and  duties  of  neutrals,  was  unable 
to  reach  definite  conclusions  on  a number  of  the  subjects 
included  in  its  original  program.  The  program,  it  will 
be  recalled,  included  the  following  subjects:  (1)  Transfor- 
mation of  merchant  vessels  into  war  vessels;  (2)  Private 
property  on  the  high  seas;  (3)  Delay  allowed  for  the  departure 
of  enemy  vessels  in  enemy  ports;  (4)  Contraband  of  war;  (5) 
Blockade;  (6)  Destruction  of  neutral  prizes  hy  force  majeure; 
and  (7)  Provisions  regarding  land  warfare  applicable  to  naval 
warfare.  Agreement  was  reached  on  (1)  Transformation  of 
merchant  ships  into  war  vessels;  (3)  Delay  allowed  for  the 
departure  of  enemy  merchant  vessels  in  enemy  ports,  and  a 
voeu  was  adopted  providing  that  the  principles  of  land  be 
applied  to  naval  warfare  until  the  next  Conference  codify  the 
laws  and  customs  of  naval  warfare. 

In  the  course  of  discussion  the  following  subjects,  not  men- 
tioned in  the  program,  but  within  its  spirit,  were  acted 
upon:  the  status  of  correspondance  in  time  of  war;  the  treat- 
ment to  be  accorded  the  crew  of  enemy  merchant  vessels  and 
the  exemption  from  capture  of  fishing  smacks  and  other  vessels. 
These  three  subjects  formed  as  many  separate  conventions,  so 

698 


IMMUNITY  OF  PRIVATE  PROPERTY 


699 


that  the  positive  result  of  the  deliberations  of  the  Fourth 
Commission  is  embodied  in  five  conventions  and  a voeu. 
The  subjects  of  private  property  of  the  enemy  on  the  high 
seas;  contraband;  blockade,  and  the  destruction  of  neutral 
prizes,  were  not  so  fortunate,  and,  notwithstanding  the  great 
desire  of  M.  de  Martens,  President  of  the  Commission,  and  its 
various  members  that  agreements  on  these  topics  be  reached 
and  registered  in  conventional  form,  the  Final  Act  contains 
directly  or  indirectly  no  reference  to  them.  The  discussion, 
was,  however,  valuable ; for  a free  and  full  exchange  of  views 
pointed  out  the  differences  of  opinion  which  must  be  over- 
come or  reconciled  before  the  Third  Conference  can  codify  the 
laws  and  customs  of  naval  warfare. 

Each  of  these  topics  will  be  considered  briefly  and  in  turn 
in  order  that  the  fate  of  the  Russian  program  at  the  hands 
of  the  Conference  may  be  appreciated  and  understood. 

1.  Immunity  of  Unoffending  Private  Property  of 
Enemy  Upon  High  Seas 

The  immunity  of  private  unoffending  property  of  the 
enemy  upon  the  high  seas  has  long  been  a favorite  doctrine, 
though  never  the  practice  of  the  United  States.  The  American 
delegation  to  the  First  Conference  was  instructed  to  present 
the  doctrine  in  the  following  terms : 

As  the  United  States  has  for  many  years  advocated  the 
exemption  of  all  private  property  not  contraband  of  war  from 
hostile  treatment,  you  are  authorized  to  propose  to  the  Con- 
ference the  principle  of  extending  to  strictly  private  property  at 
sea  the  immunity  from  destruction  or  capture  by  belligerent 
Powers  which  such  property  already  enjoys  on  land  as  worthy 
of  being  incorporated  into  the  permanent  law  of  civilized 
nations.  ‘ 

The  second  volume  of  Mr.  Andrew  D.  White’s  autobiography 
shows  with  what  care  and  solicitude  the  subject  was  regarded 

‘ See  Instructions  to  the  American  Delegation,  Vol.  II,  p.  9. 


700 


THE  HAGUE  PEACE  CONFERENCES 


and  how  Dr.  White  personally  presented  the  doctrine  in  an 
appropriate  manner  at  the  opportune  moment.* 

The  subject  did  not  figure  in  the  official  program  to  the 
First  Conference,  but  the  American  delegation  sought  at  vari- 
ous times  to  introduce  it  and  secure  its  consideration.  A voeu 
was  eventually  agreed  to  that  the  question  should  figure  in 
the  program  of  a future  conference,  and  at  the  fifth  plenary 
session  of  the  Conference,  held  on  July  5,  1899,  Dr.  White 
read  a carefully  prepared  paper  which  was  spread  in  full 
upon  the  record  of  the  Conference.^ 

In  the  circular  letter  of  October  21,  1904,  which  may  be 
considered  as  the  call  of  the  Second  Conference,  Mr.  Hay 
quoted  the  resolution  of  the  Senate  and  House  of  Representa- 
tives of  April  28,  1904,  in  favor  of  the  immunity,  and  the  Rus- 
sian program,  dated  April  12,  1906,  included  properly  and 
necessarily  the  subject  of  private  property  of  the  enemy  upon 
the  high  seas.  The  Instructions  to  the  American  Delegation 
to  the  Second  Conference  not  only  authorized  but  required 
the  submission  of  the  question.® 

The  discussion  of  the  immunity  of  private  property,  pro- 
posed by  the  American  delegation,  began  on  the  twenty- 
eighth  of  June  and  closed  on  the  twelfth  of  August,  1907. 
The  Fourth  Commission  was  unable  to  reach  an  agreement  on 
this  important  question,  although  the  American  proposal  was 
supported  by  Mr.  Choate  in  an  address  of  great  power  and 
beauty,  clearness  and  precision  in  which  the  arguments  for  the 
proposition  were  exhausted  and  the  objections  submitted  to 
a keen  and  searching  examination  and  criticism.  In  the 
course  of  debate,  proposals  and  counter-proposals,  amend- 
ments and  declarations  were  made,  and  the  discussion  was  as 
profound  and  thorough  as  the  subject  was  important.  If 
agreement  was  not  reached,  it  was  due  solely  to  the  fact  that 
large  maritime  powers  such  as  Great  Britain,  Japan  and 

' Vol.  II,  pp.  262,  266,  283,  287,  289,  290,  296,  316-317,  328;  Holls’ 
Peace  Conference,  pp.  306-321. 

* La  Conference  International  de  la  Paix,  1899,  part  I,  pp.  31-33. 

® See  instructions,  Vol.  II,  pp.  192-194. 


IMMUNITY  OF  PRIVATE  PROPERTY 


701 


Russia,  and  in  a lesser  degree  France,  were  unwilling  to  re- 
nounce the  right  of  capture  of  private  property,  either  as  a 
means  of  preventing  a resort  to  arms  or  of  shortening  the  war 
by  bringing  the  enemy  to  terms.  Less  drastic  measures 
failed  for  the  same  reason. 

The  importance  and  interest  of  the  subject  in  itself,  as  well 
as  the  desire  to  treat  it  impartially,  suggest  the  advisability 
of  presenting  it  in  the  exact  form  in  which  it  was  finally  laid 
before  the  commission.  I therefore  translate  without  com- 
ment the  admirable  report  of  the  official  Reporter,  M.  Henri 
Fromageot. 

The  commission  had  before  it  ten  propositions,  declarations, 
or  amendments,  presented  by  the  Delegations  of  the  United 
States,  Austria-Hungary,  Italy,  Holland,  Brazil,  Denmark, 
Belgium  and  France,  in  the  examination  of  which  the  com- 
mission spent,  in  whole  or  in  part,  not  less  than  six  of  its  sessions. 

The  proposition  of  the  United  States  which  required  the 
absolute  suppression  of  the  right  of  capture  except  in  case 
of  carriage  of  contraband  or  of  the  violation  of  blockade, 
served  as  the  basis  of  a profound  discussion  of  the  question 
of  immunity.  The  proposition  was,  in  the  following  terms: 

“ The  private  property  of  all  citizens  or  subjects  of  the  Signa- 
tory Powers,  with  the  exception  of  contraband  of  war,  shall  be 
exempt  from  capture  or  seizure  on  the  high  seas  or  elsewhere  by 
the  armed  vessels  or  by  the  military  forces  of  any  of  the  said 
Signatory  Powers.  But  nothing  herein  contained  shall  extend 
exemption  from  seizure  to  vessels  and  their  cargoes  which  may 
attempt  to  enter  a port  blockaded  by  the  naval  forces  of  any  of 
the  said  Powers.” 

All  the  arguments  in  favor  of  immunity  were  sustained  with 
an  eloquence  and  a dialectical  force  difficult  to  surpass. 

The  American  Delegation  recalled  the  historical  continuity 
of  the  Doctrine  from  Benjamin  Franklin  to  President  Roosevelt, 
from  the  negotiation  of  the  Treaty  of  the  United  States  with 
Great  Britain  in  1783  and  the  conclusion  of  the  Treaty  with 
Prussia  in  1785,  to  the  Treaty  of  1871  with  Italy,  the  efforts 
made  in  connection  with  the  Declaration  of  Paris  of  1856,  the 
manifestations  of  public  and  parliamentary  opinion  in  Germany, 
the  examples  furnished  for  more  than  forty  years  by  the  Italian 
Code  for  the  merchant  marine,  the  high  authority  of  the  greatest 
men  in  public  life  in  England,  the  opinion  of  the  numerous  and 
eminent  jurists  in  favor  of  the  freedom  of  enemy  commerce. 

The  analogy  with  the  rules  forbidding  pillage  in  land  war- 
fare, the  slight  naval  interest  today  in  the  destruction  of  kiom- 


702 


THE  HAGUE  PEACE  CONFERENCES 


mei’ce,  the  reasons  of  humanity,  the  unjustifiable  trouble  caused 
to  transactions  in  which  all  neutrals  are  as  much  concerned  as 
the  belligerents  themselves,  the  necessity  of  limiting  the  war  to 
the  organized  military  forces  of  the  belligerents,  without  involv- 
ing unoffending  private  persons,  the  risk  of  arousing  the  spirit  of 
vengeance  and  reprisal,  were  put  in  a clear  and  striking  fight. 

The  impossibility  of  admitting  that  war  must  be  prevented, 
or  its  end  hastened  by  rendering  it  as  terrible  as  possible,  the 
slight  influence  of  commerce  and  the  world  of  affairs  in  causing 
or  preventing  war,  the  enormous  increase  of  naval  expenditure 
caused  by  the  necessity  of  protecting  commerce  in  case  of  war, 
nothing  was  omitted  which  could  command  attention. 

The  delegations  of  certain  countries,  notably  Brazil,  Nor- 
way, Sweden,  Austria-Hungary,  recalled  the  continuity  of  the 
doctrine,  or  policy,  and  adhered  to  the  proposition  of  the 
United  States. 

China  likewise  unreservedly  expressed  approval.  The  Ger- 
man Delegation,  while  acknowledging  its  leaning  towards  the 
proposed  immunity,  expressed  the  reserve  that  its  adoption 
depended  upon  a previous  agreement  about  the  problems  raised 
by  contraband  of  war  and  blockade.  This  opinion  was  shared 
by  the  Delegation  of  Portugal. 

Finally,  it  should  be  stated  that  among  the  Powers  express- 
ing themselves  as  ready  to  adhere  to  the  doctrine  of  the  United 
States,  a certain  number,  especially  Holland,  Greece,  Sweden, 
did  not  conceal  their  doubts  as  to  the  possibility  of  reaching  a 
unanimous  agreement  at  present. 

For  reasons  analogous  to  those  expressed  in  the  German 
reserves,  the  Russian  Delegation  remarked  that,  according  to 
the  Imperial  Government,  the  question  did  not  appear  prac- 
tically to  be  ripe;  that  its  solution  presupposed  previous  under- 
standing and  an  experience  still  to  be  acquired;  that  in  fact  the 
actual  status  quo  should  be  maintained  for  the  present.  Fur- 
thermore, it  added,  the  fear  of  perturbations  brought  by  war 
into  commercial  markets  would  prove  an  unquestionable  guar- 
antee for  peace. 

The  impossibility  of  separating  the  question  of  immunity 
from  that  of  commercial  blockade,  the  character  less  cruel  of 
the  stoppage  of  commerce,  compared  to  the  massacres  that  war 
engenders,  seemed  to  be  determinative  for  the  Delegation  of 
Great  Britain,  which,  however,  declared  that  its  Government 
would  be  ready  to  consider  the  abolition  of  the  right  of  capture, 
if  such  an  agreement  would  favor  the  reduction  of  arma- 
ments. 

The  Argentine  Republic  pronounced  itself  categorically  for 
the  maintenance  of  the  right  of  capture.  Colombia  declared 
that,  whatever  the  theoretical  considerations  that  may  be 
invoked  in  favor  of  the  abolition  of  the  right  of  capture,  there 


IMMUNITY  OF  PRIVATE  PROPERTY 


703 


was  in  it  an  element  of  national  defense  the  relinquishment  of 
which  was  precluded  by  the  care  of  its  national  interests. 

In  presence  of  these  divergent  views,  praiseworthy  efforts 
were  made  in  view  of  securing  the  adoption  of  means  apt  to 
lessen  the  unwarranted  rigors  of  the  present  practice. 

Italy,  while  declaring  in  favor  of  maintaining  the  principle 
of  immunity  incorporated  in  its  laws,  expressed  the  desire  that 
immediate  measures  might  be  presented  and  discussed  before 
the  close  of  the  discussion,  in  case  the  principle  of  immunity 
could  not  yet  be  adopted  by  the  Conference. 

Brazil  proposed  that,  subordinated  to  an  agreement  upon 
the  immunity,  which  it  hoped  might  be  reached,  the  powers 
agree  to  apply  to  maritime  war  and  to  private  property  on  the 
seas  the  dispositions  of  Articles  23,  28,  46,  47  and  53  of  the 
Convention  of  1899,  on  the  laws  and  customs  of  land  warfare. 

Belgium  proposed  that  instead  of  striving  for  a result  that 
had  little  chance  of  being  reached  at  this  time,  the  States  should 
agree  to  diminish  the  rigors  of  capture  by  substituting  for  con- 
fiscation simple  seizure  or  sequestration,  in  order  to  release  the 
crews,  to  prohibit  the  destruction  of  prizes,  and  establish  finally 
a series  of  rules  respecting  the  rights  of  belligerents,  in  maritime 
warfare,  to  the  private  property  of  the  enemy. 

In  the  same  spirit,  the  Dutch  Delegation,  after  having  pro- 
posed that  every  ship  bearing  a passport  certifying  that  it  will 
not  be  used  as  a war-vessel  be  exempt  from  capture,  announced 
its  acceptance  of  the  project  presented  by  the  Delegation  of 
Belgium  under  reservation  of  some  modifications. 

Finally  the  French  Delegation  expressed  its  sympathy  for 
the  liberality  of  the  proposed  doctrine,  and  declared  its  readiness 
to  pledge  its  support  if  a unanimous  agreement  could  be  reached, 
but  as  this  agreement  did  not  now  seem  possible  and  depends 
upon  the  settlement  of  other  equally  delicate  questions  the 
French  Delegation  proposed  to  subordinate  the  maintenance  of 
the  present  practice  to  the  respect  of  the  conditions  of  modern 
war  between  State  and  State.  The  Delegation  stated  that 
within  these  limits  and  from  the  point  of  law  and  equity,  the 
obstruction  or  stoppage  of  enemy  commerce  as  a means  of  sus- 
pending the  economic  animation  of  the  adversary,  is  perfectly 
justifiable.  It  offers  a powerful  means  of  coercion  whose 
legitimacy  requires  only  that  it  be  not  a means  of  profit  to 
individuals.  Moved  by  these  considerations  a twofold  recom- 
mendation was  proposed  in  order  to  render  general  the  abolition 
of  the  ancient  custom  of  the  share  of  prize  money  given  to  the 
crew  of  the  captor,  and  to  put  upon  the  States  a share  of  the 
losses  resulting  from  capture. 

It  was  in  these  conditions  that  the  vote  was  taken  upon  this 
important  question. 

The  proposition  of  the  United  States  of  America  (immunity) 


704 


THE  HAGUE  PEACE  CONEERENCES 


put  first  to  vote,  received  from  the  forty-four  States  represented, 
21  yeas,  11  nays,  1 abstention,  eleven  states  not  responding  to 
the  roll-call. 

In  the  absence  of  a number  of  votes  suflficient  to  ensure  a 
unanimous  agreement  or  at  least  an  accord  well-nigh  general,the 
commission  passed  to  the  Brazilian  proposition  (assimilation 
of  naval  to  land  warfare).  The  vote  to  take  it  into  consideration, 
having  resulted  in  a fairly  equal  division  of  the  votes  cast,  and  in 
numerous  absentions,  the  Delegation  of  Brazil  withdrew  its 
proposition. 

The  Belgian  proposition  (substitution  of  sequestration  for  con- 
fiscation) after  having  received  a majority  in  favor  of  its  con- 
sideration was  unable,  in  the  discussion  of  its  articles,  to  obtain 
what  could  be  deemed  a sufficient  vote  in  its  favor,  and  the 
royal  delegation  asked  that  it  be  withdrawn  from  consideration. 

Before  the  diversity  of  opinion  thus  expressed  and  the  hope 
of  concentrating  the  votes  on  a single  formula,  the  President  of 
the  Commission  proposed  to  make  the  recommedation  that 
in  future  at  the  beginning  of  hostilities,  the  Powers  declare  of 
their  own  accord  if  and  in  what  conditions  they  have  decided  to 
renounce  the  right  of  capture. 

But,  here  again,  objections  were  raised  from  various  quarters 
and  the  compromise  voeu  was  withdrawn. 

The  commission  was  thus  obliged  to  express  its  opinion, 
in  the  final  result,  upon  the  twofold  voeu  proposed  by  the 
French  Delegation  (suppression  of  individual  shares  of  prize- 
money,  participation  of  the  State  in  the  losses  suffered  by  capture). 
This  voeu  notwithstanding  an  amendment  of  Austria-Hungary 
likewise  resulted  only  in  an  indecisive  vote  and  in  numerous 
abstentions. 

Such  is  the  summary  of  this  long  discussion  of  one  of  the 
most  important  questions  of  the  program  of  the  commission. 
I have  endeavored  to  make  it  true,  without,  however,  imposing 
upon  your  time.  I wish  I could  have  better  expressed  the  pro- 
found impression  left  in  each  one  of  us  by  the  beautiful  addresses 
which  it  was  our  privilege  to  hear.  If  the  maintenance  of  the 
present  state  of  affairs  seemed  to  result  necessarily  from  this 
discussion,  it  is  permitted  to  hope  with  the  eminent  first  Delegate 
of  Belgium,  His  Excellency  M.  Beernaert,  that  a future  agree- 
ment is  not  impossible.^ 

2.  Contraband 

The  subject  of  contraband  was  necessarily  and  intimately 
connected  with  the  immunity  claimed  for  enemy  property, 

^ La  Deuxeime  Conference  Internationale  de  la  Paix,  1907,  Actes  et 
Documents,  Vol.  I,  pp.  245-250. 


CONTRABAND 


705 


because  articles  falling  within  the  definition  of  contraband 
were  to  be  expressly  excluded  from  the  benefit  of  the  immunity. 
In  the  same  way,  vessels  running  a blockade  and  their  cargoes 
were  beyond  the  letter  as  well  as  the  spirit  of  the  proposed 
immunity.  M.  Ruy  Barbosa  was  therefore  far  from  wrong 
when  he  proposed  to  adjourn  the  vote  on  the  immunity  until 
after  the  consideration  of  contraband  and  blockade,  and 
Marschall  von  Bieberstein  was  eminently  justified  in  condi- 
tioning his  approval  of  the  proposed  immunity  of  private 
property  upon  an  agreement  upon  contraband  and  blockade.* 

Events  showed,  however,  that  the  separate  and  previous 
discussion  of  immunity  on  principle  was  justified,  because  the 
commission  failed  to  reach  any  conclusions  upon  contraband 
and  blockade,  except  that  they  were  difficult  in  themselves 
and  too  complicated  to  be  codified  at  the  Conference. 

First  of  contraband.  The  general  treatment  and  its  three- 
fold division  by  Grotius  still  remain,  says  Hall,  the  natural 
framework  of  the  subject.  For  this  reason  I quote  the  text 
of  Grotius,  and  an  approval  of  it  from  an  authoritative  judg- 
ment of  the  Supreme  Court  of  the  United  States,  before  giving 
in  brief  and  summary  form  the  various  proposals  made  in  the 
commission  for  revision  and  modification  of  the  existing  doc- 
trine, including  the  radical  proposal  made  by  Great  Britain 
for  its  abolition. 

First  of  Grotius,  who  says  in  the  fifth  chapter  of  the  third 
book  of  his  immortal  work  on  International  Law : 

But  the  question  often  arises,  what  is  lawful  against  those  who 
are  not  enemies,  or  will  not  allow  themselves  to  be  so  called,  but 

' The  intimate  connection  between  the  immunity  of  private  property  of 
the  enemy  and  the  question  of  contraband  and  blockade  was  not  lost  sight 
of  by  the  friends  and  opponents  of  the  doctrine  in  the  First  Conference.  For 
example,  Dr.  White  says  in  his  Autobiography: 

“Discussing  the  question  of  the  immunity  of  private  property,  not  con- 
traband of  war,  on  the  high  seas,  I find  that  the  main  argument  which  oxir 
opponents  are  now  using  is  that,  even  if  the  principle  were  conceded,  new 
and  troublesome  questions  would  arise  as  to  what  really  constitutes  con- 
traband of  war;  that  ships  themselves  would  undoubtedly  be  considered  as 
contraband,  since  they  can  be  used  in  conveying  troops,  coal,  supplies, 
etc.” — Vol.  II,  p.  289. 


706 


THE  HAGUE  PEACE  CONFERENCES 


who  provide  our  enemies  with  supplies  of  various  kinds?  This 
has  been  a point  sharply  contested,  both  anciently  and  recently; 
one  party  defending  the  rigorous  rights  of  war,  the  other,  the 
freedom  of  commerce. 

In  the  first  place,  we  must  make  a distinction  as  to  the 
things  supplied.  For  there  are  some  articles  a supply  of  which 
are  useful  in  war  only,  as  arms;  others  which  are  of  no  use  in  war, 
but  are  only  luxuries;  others  which  are  useful  both  in  war  and 
out  of  war,  as  money,  provisions,  ships  and  their  furniture.  In 
matters  of  the  first  kind,  that  is  true  which  Amalasuintha  said 
to  Justinian,  that  they  are  of  the  party  of  the  enemy  who  supply 
him  what  is  necessary  in  war.  The  second  class  of  objects  is  not 
a matter  of  complaint.  . . , . 

In  the  third  class,  objects  of  ambiguous  use,  the  state  of  the 
war  is  to  be  considered.  For  if  I cannot  defend  myself  except 
by  interce{)ting  what  is  sent,  necessity  as  elsewhere  explained, 
gives  us  a right  to  intercept  it,  but  under  the  obligation  of 
restitution,  except  there  be  cause  to  the  contrary.  If  the  sup- 
plies sent  impede  the  exaction  of  my  rights,  and  if  he  who  sends 
them  may  know  this;  as  if  I were  besieging  a town,  or  blockading 
a port,  and  if  surrender  or  peace  were  expected;^  he  will  be 
bound  to  me  for  damages. 

How  thoroughly  the  passages  quoted  from  Grotius  express 
the  theory  and  practice  of  the  United  States  will  appear  from 
the  following  excerpt  from  the  judgment  of  Chief  Justice  Chase 
in  the  case  of  the  Peterhoff  (1866,  5 Wallace,  28,  58)  arising  out 
of  the  war  between  the  States. 

The  classification  of  goods,  says  the  learned  Chief  Justice, 
as  contraband  or  not  contraband  has  much  perplexed  text- 
writers  and  jurists.  A strictly  accurate  and  satisfactory  classifi- 
cation is  perhaps  impracticable,  but  that  which  is  best  supported 
by  American  and  English  decisions  may  be  said  to  divide  all 
merchandise  into  three  classes.  Of  these  classes,  the  first  con- 
sists of  articles  manufactured  and  primarily  and  ordinarily  used 
for  military  persons  in  time  of  war;  the  second,  of  articles  which 
may  be  and  are  used  for  purposes  of  war  or  peace,  according  to 
circumstances;  and  the  third,  of  articles  exclusively  used  for 
peaceful  purposes. 

Merchandise  of  the  first  class,  destined  to  a belligerent  coun- 
try or  places  occupied  by  the  army  or  navy  of  a belligerent,  is 
always  contraband;  merchandise  of  the  second  class  is  contra- 
band only  when  actually  destined  to  the  military  or  naval  use  of 
a belligerent;  while  merchandise  of  the  third  class  is  not  contra- 
band at  all,  though  liable  to  seizure  and  condemnation  for 
violation  of  blockade  or  siege. 

' De  Jure  Belli  ac  Pacis,  lib.  Hi,  c.  i,  §5. 


contraband 


707 


It  is  to  be  noted  that  contraband  is  neutral  property,  and, 
as  distinguished  from  enemy  property,  is  not  liable  to  seizure 
and  confiscation  unless  exclusively  or  properly  susceptible  of 
warlike  use,  and  its  shipment  to  the  enemy  enables  him  to 
prosecute  and  continue  the  war.  Trade  in  contraband  is  not 
forbidden  by  international  law  to  the  neutral  subject  or  citi- 
zen, but  its  unneutral  character  is  so  far  recognized  that  the 
belligerent  may  intercept  and  confiscate  it.  The  trade  is  thus 
permitted,  but  subject  to  the  risk  of  the  shipper.  The  gist 
of  the  offense  is  the  injury  to  the  belligerent  from  the  nature 
of  the  goods  conveyed.  Therefore,  the  vessel  is  conducted  to  a 
port  of  the  captor  where  the  articles  of  contraband  are  duly 
condemned,  that  is  confiscated,  but  the  vessel  is  liberated  with 
loss  of  time,  freight  and  expenses.  If,  however,  the  vessel 
is  privy  to  the  transaction,  or  if  vessel  and  cargo  belong  to  the 
same  owners,  vessel  and  cargo  share  the  same  fate.  Inno- 
cent articles  on  board  are  known  by  the  company  they  keep, 
but  “escape  the  contagion  of  contraband”  to  quote  Lord  Sto- 
well,  if  the  property  of  a different  owner. ^ 

With  the  deposit  of  the  articles  at  the  port  of  destination, 
the  transaction  is  completed,  and  the  vessel  has  been  purged, 
as  it  were,  of  the  offense.  There  is  nothing  to  intercept  and 
neither  the  proceeds  of  sales  can  be  touched  nor  the  vessel 
seized.^ 

It  is  thus  seen  that  the  injury  to  the  belligerent  consists  in 
delivering  the  goods  to  the  enemy  port  and  this  he  is  permitted 
to  prevent.  The  question  naturally  arises  as  to  when  the 
attempt  begins  so  that  the  belligerent  may  intervene.  Anglo- 
American  jurisprudence  answers  the  moment  the  vessel  leaves 
territorial  waters  bent  upon  its  hostile  destination.  The 
intent  to  transport  the  contraband  coupled  with  the  actual 
transportation  are  sufficient.  It  follows,  therefore,  that  the 
original  intent  is  not  changed  by  touching  at  a neutral  port, 
or  even  by  transhipping  the  cargo  in  furtherance  of  the  intent. 

' The  Staat  Embden,  1 C.  Rob.  31. 

“ The  Imina,  3 C.  Rob.  168. 


708 


THE  HAGUE  PEACE  CONFERENCES 


The  voyage  is  a unit,  it  is  continuous  in  law  though  broken  in 
fact.  And  the  penalty  is  imposed  irrespective  of  accidental 
circumstances,  or  attempt  by  transshipment  to  disguise  the 
transaction. 

From  this  brief  outline  it  is  apparent  that  the  interests  of 
neutrals  and  belligerent  clash.  It  is  at  once  obvious  as  Gro- 
tius  pointed  out,  well-nigh  three  centuries  ago,  that  the  world 
is  divided  in  opinion,  “one  party  defending  the  rigorous  rights 
of  war,  the  other,  the  freedom  of  commerce.”  Neutrals 
naturally  resent  the  delay  and  inconvenience  to  which  the 
commerce  of  their  citizens  or  subjects  is  subjected  by  the 
visit  and  search,  capture  and  confiscation  by  the  forces  of 
either  belligerent,  simply  because  two  or  more  nations  are 
minded  to  break  the  peace  with  or  without  reason.  The 
uncertainty  of  the  subject — ^for  articles  are  added  to  the  lists 
of  absolute  and  relative  contraband,  not  as  the  result  of  general 
agreement  but  to  suit  the  selfish  interest  or  supposed  conven- 
iences of  the  belligerent — works  a hardship  on  innocent  ship- 
ments. It  should  not  be  forgotten  that  war  creates  a market 
not  only  for  absolute  contraband  but  for  articles  susceptible 
of  an  innocent  as  well  as  questionable  use,  and  it  seems  as 
illogical  as  imreasonable  that  belligerents  should  destroy  a 
market  which  their  resort  to  arms  has  created.  On  the  other 
hand,  a free  and  irntrammeled  commerce  in  war  materials  and 
in  articles  capable  of  warlike  use  does  supply  belligerents  with 
the  sinews  of  war  and  thus  tends  to  influence  it,  in  rare  and 
isolated  cases,  to  prolong  it.  But  men  of  affairs  are  impartial ; 
they  will  supply  either  belligerent  or  both  for  a profit.  Na- 
tional sentiment  may  prefer  one  belligerent  to  the  other,  but 
there  is  proverbially  no  friendship  in  business.  Trade  seeks 
its  market.  It  may  be  that  one  belligerent  offers  a better 
opportunity;  that  geography  and  local  situations  play  an 
unequal  part,  but  that  is  the  fault  of  the  belligerent  not  of  the 
neutral. 

As  the  interdependence  of  nations  is  as  marked,  though  not 
so  pronounced  as  their  independence,  and  as  the  conflict 
between  two  involves  directly  or  indirectly  all  members  of 


CONTRABAND 


709 


the  family  of  nations,  it  seems  only  just  and  reasonable  that 
what  concerns  all  should  be  settled  by  all,  and  that  neither 
belligerent  nor  neutral  should  determine  the  matter  for  the 
other.  The  nations  in  conference  should  take  measures  in 
behalf  of  all  without  overlooking  yet  without  giving  undue 
weight  to  special  interests. 

In  Mr.  Hay’s  circular  letter  of  October  21,  1904,  it  was 
stated  that  the  question  of  the  rights  and  duties  of  neutrals 

is  of  universal  importance.  Its  rightful  disposition  affects  the 
interests  and  well-being  of  all  the  world.  The  neutral  is  some- 
thing more  than  an  on-looker.  His  acts  of  omission  or  com- 
mission may  have  an  influence — indirect  but  tangible— -on  a war 
actually  in  progress;  whilst,  on  the  other  hand,  he  may  suffer 
from  the  exigencies  of  the  belligerents.  It  is  this  phase  of  war- 
fare which  deeply  concerns  the  world  at  large.  ^ 

And  the  distinguished  Secretary  of  State  singled  out  as 
closely  affecting  the  rights  of  neutrals  “the  distinction  to  be 
made  between  absolute  and  conditional  contraband  of  war.”* 

At  the  date  of  this  note  the  Russo-Japanese  War  was  raging, 
and  American  shipping  and  commerce  were  being  ground  as  it 
were,  between  the  upper  and  nether  mill-stone. 

In  his  instructions  to  the  American  Delegation  to  the  Second 
Conference,  Mr.  Root,  said: 

No  rules  should  be  adopted  for  the  purpose  of  mitigating  the 
evils  of  war  to  belligerents  which  will  tend  strongly  to  destroy 
the  rights  of  neutrals,  and  no  rules  should  be  adopted  regarding 
the  rights  of  neutrals  which  will  tend  strongly  to  bring  about 
war.  It  is  of  the  highest  importance  that  not  only  the  rights 
but  the  duties  of  neutrals  shall  be  most  clearly  and  distinctly 
defined  and  understood,  not  only  because  the  evils  which  bellig- 
erent nations  bring  upon  themselves  ought  not  to  be  allowed  to 
spread  to  their  peaceful  neighbors  and  inflict  unnecessary  injury 
upon  the  rest  of  mankind,  but  because  misunderstandings 
regarding  the  rights  and  duties  of  neutrals  constantly  tend  to 
involve  them  in  controversy  with  one  or  the  other  belligerent. 

For  both  of  these  reasons,  special  consideration  should  be 
given  to  an  agreement  upon  what  shall  be  deemed  to  constitute 
contraband  of  war.  There  has  been  a recent  tendency  to 


‘See  Vol.  II,  p.  171. 
’Ibid. 


710 


THE  HAGUE  PEACE  CONFEKENCES 


extend  widely  the  list  of  articles  to  be  treated  as  contraband; 
and  it  is  probable  that  if  the  belligerents  themselves  are  to 
determine  at  the  beginning  of  a war  what  shall  be  contraband, 
this  tendency  will  continue  until  the  list  of  contraband  is  made 
to  include  a large  proportion  of  all  the  articles  which  are  the 
subject  of  commerce,  upon  the  ground  that  they  will  be  useful 
to  the  enemy.  When  this  result  is  reached,  especially  if  the 
doctrine  of  continuous  voyages  is  applied  at  the  same  time,  the 
doctrine  that  free  ships  make  free  goods  and  the  doctrine  that 
blockades  in  order  to  be  binding  must  be  effective,  as  well  as 
any  rule  giving  immunity  to  the  property  of  belligerents  at  sea, 
will  be  deprived  of  a large  part  of  their  effect,  and  we  shall  find 
ourselves  going  backward  instead  of  forward  in  the  effort  to 
prevent  every  war  from  becoming  universally  disastrous.  The 
exception  of  contraband  of  war  in  the  Declaration  of  Paris  will 
be  so  expanded  as  to  very  largely  destroy  the  effect  of  the 
declaration.  On  the  other  hand,  resistance  to  this  tendency 
toward  the  expansion  of  the  list  of  contraband  ought  not  to  be 
left  to  the  neutrals  affected  by  it  at  the  very  moment  when  war 
exists  because  that  is  the  process  by  which  neutrals  become 
themselves  involved  in  war.  You  should  do  all  in  your  power 
to  bring  about  an  agreement  upon  what  is  to  constitute  contra- 
band; and  it  is  very  desirable  that  the  list  should  be  limited  as 
narrowly  as  possible.^ 

The  attitude  of  the  American  Delegation  was  thus  outlined 
in  advance:  to  consider  any  proposal  concerning  contraband 
from  the  twofold  standpoint  of  belligerent  and  neutral,  and, 
while  permitting  the  belligerent  to  protect  himself  against 
unrestricted  trade,  to  narrow  the  list  of  contraband  in  the 
interest  of  the  neutral  as  far  as  is  consistent  with  the  necessities 
of  belligerent  operations.  The  neutral  of  today  may  unfor- 
tunately be  the  belligerent  of  tomorrow,  and  the  regulation  is, 
so  to  speak,  a two-edged  sword.  While  warfare  is  permitted, 
belligerent  supervision  of  neutral  trade  is  essential,  and  we 
should  not  establish  rules  and  regulations  in  behalf  of  the  neu- 
tral which  a belligerent  will  have  every  temptation  to  dis- 
regard. It  is  unfortunate,  no  doubt,  but  still  a fact,  to  which 
we  may  not  close  our  eyes,  that  military  necessity  overrides 
limitations  incompatible  with  the  effective  conduct  of  hostili- 
ties, and  a regulation  which  hampers  the  belligerent  or  deprives 


•See  Vol.  11,  pp.  195-196. 


CONTRABAND 


711 


him  of  discretion  in  a crisis  is  apt  to  prove  a dead  letter.  We 
must  not  forget  that  in  the  recent  war  between  the  States,  the 
rigid  application  of  the  law  of  contraband  with  continuous 
voyages  and  the  effective  blockade  of  southern  ports  starved 
the  South  into  surrender  on  the  field  of  battle. 

As  a convinced  neutral,  however,  we  will  not  be  astonished 
to  learn  that  the  American  delegation  proposed  during  the 
course  of  the  Conference  to  suppress  conditional  contraband. 

The  discussion  in  the  commission  went  to  the  existence  of 
contraband  as  a system  and  the  British  delegation  laid  the 
axe  to  the  root  of  the  tree.  The  British  proposition  was 
thus  worded: 

In  order  to  lessen  the  difficulties  suffered  by  neutrals  in  case 
of  war,  the  Government  of  his  Britannic  Majesty  is  ready  to 
abandon  the  principle  of  contraband  in  case  of  war  between  the 
Powers  signing  a convention  to  this  end.  The  right  of  visit  shall 
only  be  exercised  to  establish  the  neutral  character  of  the  mer- 
chant vessel.^ 

The  Conference  recalled  the  classical  line  questioning  the 
presents  of  the  Greeks,  for  Great  Britain  has  not  been  averse 
in  times  past  to  visit  and  search  neutrals  and  subject  vessel 
and  cargo  to  capture  and  confiscation.  Suspicion  fastened 
upon  the  British  definition  of  “auxiliary  vessel”  which  seemed 
to  take  away  with  one  hand  what  the  other  gave.  The  auxil- 
iary, whether  neutral  or  belligerent,  was  to  be  assimilated  to 
a man-of-war  and  subject  to  be  captured  and  destroyed  with- 
out the  intervention  of  a Prize  Court,  if 

engaged  in  the  transportation  of  sailors,  munitions  of  war, 
fuel,  provisions,  water  or  any  other  kind  of  naval  stores,  or 
destined  to  make  repairs,  or  carrying  dispatches  or  information 
provided  the  merchant  vessel  is  directly  or  indirectly  under 
orders  from  the  belligerent  fleet.  Any  vessel  employed  in 
carrying  troops  shall  be  included  in  this  definition. 

In  view  of  this  proposal  it  cannot  be  said  that  the  suspicion 
was  wholly  unfounded,  but  the  British  delegation  withdrew 


* La  Deuxieme  Conference  Internationale  de  la  Paix,  1907,  Actes  et 
Documents,  Vol.  Ill,  Fourth  Commission,  1st  session,  p.  742. 


712 


THE  HAGUE  PEACE  CONFERENCES 


the  definition  and  the  broad  question  of  the  abolition  of  con- 
traband was  thus  before  the  commission. 

Argentine,  Belgium,  Norway,  Portugal  and  Switzerland, 
favored  unreservedly  the  British  proposition.  Austria  and 
Sweden  approved  it,  but  expressed  a willingness  to  accept  a 
less  radical  measure.  It  will  be  noted  that  the  British  allies 
belonged  to  the  neutrals.  The  naval  powers  looked  askance 
at  the  proposition  of  the  Island  Empire,  dependent  upon  the 
neutral  for  supplies,  with  no  railway  to  cross  the  border 
unhindered  by  a belligerent  navy.  Several  counter  proposi- 
tions were  therefore  presented,  all  of  which  aimed  to  preserve 
contraband  but  to  minimize  the  abuses  of  the  system.  For 
example,  Germany  proposed : 

1.  To  prohibit  commerce  in  articles  exclusively  destined  to 
a warlike  use  (absolute  contraband)  as  well  as  merchandise  sus- 
ceptible of  such  use  directed  to  the  forces  of  the  enemy  (con- 
ditional contraband)  provided  they  be  on  board  a vessel  destined 
directly  to  an  enemy  port  or  occupied  by  the  enemy,  or  to  the 
armed  force  of  the  enemy,  and  provided  further  that  the  articles 
in  question  were  expressly  declared  contraband; 

2.  That  articles  falling  within  the  definition  of  conditional 
contraband  were  conclusively  presumed  to  be  such  if  directed 
to  the  authorities  or  agents  of  the  belligerent  or  if  directed  to 
fortified  places  of  the  enemy  or  other  places  serving  as  bases  to 
the  belligerent; 

3.  That  the  list  of  contraband  should  be  published  or  noti- 
fied to  neutral  governments  or  their  diplomatic  agents; 

4.  That  contraband  is  subject  to  confiscation,  likewise  the 
vessel,  provided  its  owner  or  captain  knew  that  the  contraband 
was  on  board  and  that  it  formed  more  than  half  of  the  cargo.  ^ 

It  will  be  noted  that  the  destination  of  the  vessel  is  made  the 
test  as  well  as  the  nature  of  the  cargo,  and  that  the  doctrine 
of  continuous  voyage  is  rejected.  The  German  proposition 
is,  in  the  language  of  Grotius,  the  defense  of  the  “rigorous 
rights  of  war”  with  a sop  to  the  neutral  in  the  doctrine  of  con- 
tinuous voyage. 


' La  Deuxieme  Conference  Internationale  de  la  Paix,  1907,  Vol.  Ill, 
pp.  1156-1157. 


CONTRABAND 


713 


The  French  proposition,  on  the  other  hand,  was  based  upon 
the  freedom  of  commerce,  but  limited  in  the  interest  of  the 
belligerent.  For  example: 

1.  Trade  in  absolute  contraband  (enumerated  in  a list  of 
thirteen  subjects)  is  forbidden  by  the  sole  fact  of  the  known 
existence  of  war; 

2.  Absolute  contraband  subjects  to  confiscation,  and  the 
ship  may  be  confiscated  if  seizure  is  resisted  or  if  the  captain  or 
owner  knew  or  could  have  known  the  nature  of  the  prohibited 
cargo; 

3.  Trade  in  articles  not  prohibited  in  the  list  of  absolute 
contraband  is  permitted,  but  may  be  prohibited  by  previous 
notification  through  diplomatic  channels  of  articles  specified 
in  the  notification; 

4.  Confiscation  of  such  articles  is  permitted  if  destined  not 
merely  to  the  enemy  but  really  to  military  or  naval  forces  or 
to  service  of  the  enemy  State.  If  not  so  destined,  the  articles 
in  question  can  only  be  seized  upon  payment  of  its  value  to  the 
owner; 

5.  Destination  to  neutral  port  does  not  stamp  the  venture 
with  neutral  character  when  the  belligerent  only  has  access  to 
the  sea  through  this  neutral  territory.^ 

The  last  clause  is  an  echo  of  the  controversy  at  Lorenzo 
Marquez  when  the  Boer  Republic,  shut  in  from  the  sea,  used 
the  Portuguese  port  for  supplies.  It  is  also  interesting  as  a 
recognition  of  the  test  of  the  real  and  ultimate  destination 
essential  to  continuous  voyage. 

The  proposition  of  Brazil,  based  upon  resolutions  adopted 
by  the  Institute  of  International  Law,  retained  absolute  but 
rejected  relative  contraband;  it  recognized  a right  of  pre- 
emption of  certain  articles  (provisions,  coal,  raw  cotton,  uni- 
forms) if  directed  to  the  enemy,  and  recognized  the  actual  and 
ultimate  destination  of  the  cargo,  not  merely  of  the  vessel,  as 
the  test.  This  proposition  was  not  insisted  upon;  it  was  pre- 
sented for  consideration  in  case  the  British  proposal  should 
prove  unacceptable.^ 


'La  Deuxieme  Conference  Internationale  de  la  Paix,  1907,  Vol.  Ill, 
pp.  1157-1168. 

2 Ibid.,  pp.  1159-1160. 


714 


THE  HAGUE  PEACE  CONFERENCES 


Finally  the  American  delegation  presented  a proposition 
retaining  absolute  and  conditional  contraband,  without  a 
specification  of  the  articles  forming  either,  because  in  changing 
conditions  it  seemed  inadvisable  to  adopt  a hard  and  fast  list. 
The  neutral,  however,  should  not  be  taken  by  surprise,  and 
therefore  the  belligerent  should  publish  the  list  of  contraband 
and  notify  neutral  governments  before  neutral  trade  should  be 
restrained.  The  proposition  consisted  of  the  following  three 
articles : 

1.  Absolute  contraband  shall  consist  of  arms,  munitions  of 
war,  provisions,  and  articles  solely  used  for  military  purposes  or 
for  military  establishments. 

2.  Conditional  contraband  shall  consist  of  provisions,  mate- 
rials and  articles  which  are  employed  for  the  double  purpose  of 
peace  and  war,  but  which  by  reason  of  their  nature  or  special 
quality,  their  quantity  or  by  their  nature,  quality  and  quantity 
are  useful  and  necessary  for  military  purposes  and  which  are 
destined  for  the  use  of  armed  forces  or  the  military  establish- 
ments of  the  enemy. 

3.  The  list  of  articles  and  provisions  to  be  included  in  each 
of  the  above  classes  must  be  duly  published  and  notified  by  the 
belligerents  to  neutral  governments  or  their  diplomatic  agents, 
and  no  article  shall  be  seized  or  confiscated  as  conditional  con- 
traband until  such  publication  or  notice  has  been  made.‘ 

The  advantage  of  the  American  proposition  to  the  belliger- 
ent is  its  elasticity,  leaving  him  free  to  determine  the  list 
in  the  light  of  all  the  conditions  and  circumstances  of  the  war. 
Its  advantage  to  the  neutral,  which  it  shares  in  common  with 
other  projects,  is  the  necessity  of  notice.  The  disadvantage 
to  the  neutral  is  the  uncertainty  in  which  it  is  left  until  it 
pleases  the  belligerent  to  arrange  his  list  and  publish  it  to  the 
world. 

Such  were  the  various  projects  presented  to  the  commission 
for  its  consideration — one  of  which  proposed  the  total  abolition 
of  contraband ; the  others  its  retention  in  various  and  modified 
forms.  Of  Lord  Reay’s  admirable  address  in  support  of  the 

^La  Deuxieme  Conference  Internationale  de  la  Paix,  1907,  Vol.  Ill, 

p.  1160. 


CONTRABAND 


715 


British  proposition/  the  official  reporter,  M.  Henri  Fromageot 
gives  the  following  brief  and  adequate  summary : 

The  British  Delegation  in  developing  the  reasons  of  its  prop- 
osition accentuated  the  fact  that  the  prohibition  of  contraband 
is  hardly  reconcilable  with  the  modern  state  of  affairs.  For- 
merly it  was  stated  in  the  days  of  sailing  craft,  the  voyage  was 
rarely  broken  at  intermediate  ports.  The  articles  of  contraband 
were  especially  articles  of  absolute  contraband.  The  destina- 
tion of  the  vessel  ordinarily  sufficed  to  indicate  the  destination 
and  the  hostile  character  of  the  merchandise;  the  tonnage  was 
relatively  light,  the  exercise  of  the  right  of  visit  and  search  easy. 
The  prohibition  of  contraband  was  effectual.  Today,  the  dis- 
coveries of  science  have  singularly  increased  the  number  of 
articles  comprised  in  the  name  of  conditional  contraband ; the 
prohibition  to  be  useful  must  be  stretched  to  the  point  of  render- 
ing the  Declaration  of  Paris  a dead-letter.  Moreover,  naviga- 
tion by  steam,  with  its  numerous  calling  stations,  has  given  rise 
to  singular  complications  against  which  the  theory  of  continuous 
voyages  endeavors  to  contend,  and,  on  the  other  hand,  thanks 
to  the  improvement  in  the  means  of  land  transportation,  contra- 
band easily  circumvents  its  prohibition;  finally, the  importance 
of  the  tonnage,  the  diversity  of  the  cargo,  the  ignorance  of  the 
captain  as  to  the  whereabouts  of  the  articles  tend  to  render  the 
visit  and  search  difficult,  the  prohibition  ineffective,  and,  in  all 
cases  to  inflict  upon  neutral  commerce  a trouble  disproportionate 
to  the  legitimate  interest  of  the  belligerent.^ 

Put  to  vote,  the  British  proposition  for  the  abolition  of  con- 
traband received  out  of  thirty-five  votes,  26  for;  5 against; 
4 abstentions.® 

As  the  result  of  this  favorable  vote,  the  entire  question  was 
referred  to  the  Committee  of  Examination,  and,  ultimately  to  a 
smaller  sub-committee,  in  order  to  examine  the  British  project 
and  the  various  propositions  previously  mentioned  in  order  to 

* La  Deuxieme  Conference  Internationale  de  la  Paix,  1907,  Actes  et 
Documents,  Vol.  Ill,  Fourth  Commission,  8th  session,  pp.  854-859. 

“ Report  to  the  Second  Conference  by  M.  Henri  Fromageot,  Actes  et 
Documents,  Vol.  I,  pp.  257-258. 

^ States  voting  in  favor:  Argentine,  Austria-Hungary,  Belgium,  Brazil, 
Bulgaria,  Chili,  China,  Denmark,  Santo  Domingo,  Spain,  Great  Britain, 
Greece,  Italy,  Mexico,  Norway,  Paraguay,  Holland,  Peru,  Persia,  Portugal, 
Salvador,  Servia,  Siam,  Sweden,  Switzerland. 

States  voting  against:  Germany,  France,  Montenegro,  Russia;  States 
abstaining:  Japan,  Panama,  Roumania,  Turkey. 


716 


THE  HAGUE  PEACE  CONFERENCES 


frame  a project  acceptable  to  the  commission.  In  the  sub- 
committee Lord  Reay  stated  that,  as  the  abandonment  of 
contraband  had  not  been  unanimously  accepted,  it  was  advis- 
able to  consider  the  other  propositions  based  upon  retention  of 
contraband  in  order  to  reach  a general  agreement.  The  list  of 
absolute  contraband  in  the  French  proposal  was  taken  as  the 
basis  of  discussion  and  after  a careful  examination  a 
list  was  drawn  up  and  unanimously  accepted.  A difficulty 
thereupon  arose  that  prevented  further  progress.  Admiral 
Sperry  on  behalf  of  the  United  States  objected  to  any  list  of 
conditional  contraband,  stating  that  commerce,  other  than  in 
absolute  contraband,  should  be  free  and  unrestricted.  Brazil, 
Chili  and  Great  Britain,  adhered  to  this  view,  while  Germany, 
France  and  Russia  opposed.  Unable  to  agree  upon  this 
important  matter  the  subject  dropped.  The  only  result  of 
deliberations  extending  over  several  sessions  was  a list  of 
absolute  contraband  which  met  with  unanimous  approval  in 
the  committee.  The  list,  however,  was  not  adopted  by  the 
Conference,  owing  to  lack  of  agreement  on  conditional  con- 
traband, but  it  doubtless  is  of  value  as  representing  the  expert 
opinion  in  the  year  1907 : 

1.  Weapons  of  all  kinds,  including  sporting  weapons  and 
characterized  parts; 

2.  Projectiles,  cartridges  of  all  kinds  and  their  character- 
ized separate  parts; 

3.  Powders  and  explosives  especially  intended  for  warfare; 

4.  Gun  carriages,  caissons,  limbers,  military  wagons,  bat- 
tery forges  and  their  characterized  separate  parts; 

5.  Characterized  military  clothing  and  equipment; 

6.  Characterized  military  saddlery  of  all  kinds; 

7.  Saddle,  draught  and  pack  animals  utilizable  in  war; 

8.  Camp  equipage  and  characterized  detached  parts; 

9.  Armor  plates; 

10.  War  ships  and  boats,  and  separate  parts  specially 
characterized  as  being  only  fit  for  use  on  board  a ship  of  war; 

11.  Tools  and  apparatus  exclusively  intended  for  manu- 
facturing war  ammunitions,  for  manufacturing  and  repairing 
arms  and  military  material  whether  land  or  naval.* 

* La  Deuxifeme  Conference  Internationale  de  la  Paix,  Actes  et  Docu- 
ments, Vol.  I,  pp.  259-260. 


BLOCKADE 


717 


3.  Blockade 

Passing  now  to  blockade,  the  same  unfortunate  result  must 
be  registered,  namely  inability  to  agree.  The  subject  was 
simpler  than  contraband,  but  the  differences  proved  equally 
irreconcilable. 

The  rule  of  international  law  permits  a belligerent  to  block- 
ade an  enemy  port  and  forbid  all  trade  with  it.^  It  is  needless 
to  say  that  this  is  an  extreme  right,  irksome  and  borne  with 
bad  grace  by  the  neutral,  who  may  and  constantly  does  ques- 
tion the  existence  of  a blockade,  and  challenge  the  legal  author- 
ity of  the  party  which  has  undertaken  to  establish  it.  A 
belligerent  engaged  in  actual  war  has  a right  to  blockade  the 
ports  of  the  other  belligerent,  and  neutrals  are  bound  to  respect 
that  right.  The  blockade  of  a port  is  as  legitimate  and,  in  an 
era  of  naval  warfare,  as  necessary  and  more  advantageous 
than  a siege  by  land.  As  is  said  by  a most  distinguished 
authority,  at  one  time  commander-in-chief  of  the  Union 
forces  in  the  field, 

a siege  is  a military  investment  of  a place,  so  as  to  intercept,  or 
render  dangerous,  all  communications  between  the  occupants 
and  persons  outside  of  the  besieging  army;  and  the  place  is 
said  to  be  blockaded,  when  such  communication  by  water,  is  either 
entirely  cut  off  or  rendered  dangerous  by  the  presence  of  the 
blockading  squadron.  A place  may  be  both  besieged  and 
blockaded  at  the  same  time,  or  its  communications  by  water 
may  be  intercepted,  while  those  by  land  may  be  left  open,  and 
vice  versa.^ 

The  reason  for  the  practice  is  simple,  namely,  that  the 
enemy  is  either  starved  into  submission,  or  the  injury  to  his 
resources,  by  the  lack  of  commerce,  leads  him  to  lend  a more 
willing  ear  to  the  persuasive  voice  of  peace  and  self-interest. 


* The  right  to  blockade  an  enemy’s  port  with  a competent  force  is  a 
right  secured  to  every  belhgerent  by  the  law  of  nations. — McCall  v.  Marine 
Ins.  Co.,  8 Cranch  59  (1814). 

* Halleck’s  International  Law  (3d  ed.  by  Baker)  II,  184,  §3.  Indeed  the 
cases  of  the  Circassian  (2  Wallace  135)  and  the  Adula  (175  U.  S.  361)  held 
that  a blockade  may  be  made  effectual  by  batteries  ashore  as  well  as  by 
ships  affoat. 


718 


THE  HAGUE  PEACE  CONFERENCES 


Blockades  are  divided,  by  English  and  American  pubhcists, 
into  two  kinds:  (1)  A simple  or  de  facto  blockade,  and  (2)  a 
public  or  governmental  blockade.  This  is  by  no  means  a mere 
nominal  distinction,  but  one  that  leads  to  practical  consequences 
of  much  importance.  In  cases  of  capture,  the  rules  of  evidence 
which  are  applicable  to  one  kind  of  blockade,  are  entirely 
inapplicable  to  the  other;  and  what  a neutral  vessel  might  law- 
fully do  in  case  of  a simple  blockade,  would  be  sufficient  cause 
for  condemnation  in  case  of  a governmental  blockade.  A 
simple  or  de  facto  blockade  is  constituted  merely  by  the  fact  of 
an  investment,  and  without  any  necessity  of  a public  notifica- 
tion. As  it  arises  solely  from  facts,  it  ceases  when  they  termi- 
nate; its  existence  must,  therefore,  in  all  cases,  be  established  by 
clear  and  decisive  evidence.  The  burthen  of  proof  is  thrown 
upon  the  captors,  and  they  are  bound  to  show  that  there  was  an 
actual  blockade  at  the  time  of  the  capture.  If  the  blockading 
ships  were  absent  from  their  stations  at  the  time  the  alleged 
breach  occurred,  the  captors  must  prove  that  it  was  accidental, 
and  not  such  an  absence  as  would  dissolve  the  blockade.  A 
-public,  or  governmental  blockade,  is  one  where  the  investment  is 
not  only  actually  established,  but  where  also  a public  notifica- 
tion of  the  fact  is  made  to  neutral  powers  by  the  government,  or 
officers  of  state,  declaring  the  blockade.  Such  notice  to  a neu- 
tral State  is  presumed  to  extend  to  all  its  subjects;  and  a 
blockade  established  by  public  edict  is  presumed  to  continue  till 
a public  notification  of  its  expiration.  Hence  the  burthen  of 
proof  is  changed,  and  the  captured  party  is  now  bound  to  repel 
the  legal  presumptions  against  him  by  unequivocal  evidence. 
It  would,  probably,  not  be  sufficient  for  the  neutral  claimant  to 
prove  that  the  blockading  squadron  was  absent,  and  there  was 
no  actual  investment  at  the  time  the  alleged  breach  took  place; 
he  must  also  pi’ove  that  it  was  not  an  accidental  and  temporary 
absence,  occasioned  by  storms,  but  that  it  arose  from  causes 
which,  by  their  necessary  and  legal  operation,  raised  the  block- 
ade.' 

As  municipal  law  does  not  forbid  neutral  trade  with  a 
blockaded  port,  although  the  Law  of  Nations  undoubtedly  does 
subject  neutral  property  in  such  a case  to  capture  and  con- 
fiscation,^ it  is  of  great  importance  to  the  neutral  to  know  the 


^ Moore;  Digest  of  International  Law,  Vol.  VII,  p.  783,  quoting  Halleck, 
Int.  Law  (3d  ed.  by  Baker)  Vol.  II,  p.  189. 

^ It  appears  that  principle,  authority,  and  usage  unite  in  calling  on  me 
to  reject  the  new  doctrine  that,  to  carry  on  trade  with  a blockaded  port,  is 
or  ought  to  be  a municipal  offense  by  the  law  of  nations. — Per  Dr.  Lush- 
ington  in  The  Helen,  L.  R.  I Ad.  & Ecc.  1,  1865. 


BLOCKADE 


719 


precise  moment  when  a venture  lawful  by  municipal  becomes 
illegal  by  international  law.  The  blockade  must  be  legally 
binding,  because  it  is  by  virtue  of  the  blockade  that  neutral 
property  becomes  hable  to  seizure;  and  it  is  equally  obvious 
that  the  neutral  must  be  taxed  with  knowledge  of  the  block- 
ade, otherwise  we  have  an  offense  in  international  law  without 
a criminal  intent,  and  finally  there  must  be  some  act  done  in 
furtherance  of  the  intent  formed  or  existing  to  violate  the 
blockade. 

In  the  language  of  a great  authority  whose  decisions  form 
the  Golden  book  of  prize  law,  I mean,  of  course  Lord  Stowell, 

on  the  question  of  blockade  three  things  must  be  proved:  (1), 
the  existence  of  an  actual  blockade;  (2),  the  knowledge  of  the 
party;  and  (3),  some  act  of  violation,  either  by  going  in,  or  by 
coming  out  with  a cargo  laden  after  the  commencement  of 
blockade.^ 

If  we  add  the  word  “attempt”  to  entry,  the  definition  is  as 
complete  and  accurate  as  possible  with  a few  lines. 

The  blockade  must  be  actual  as  distinct  from  fictitious, 
maintained  by  a force  in  position  not  by  an  inhibition  on  paper, 
so  that  the  entry  is  blocked  and  the  attempt  to  enter  danger- 
ous. To  quote  another  distinguished  authority,  Sir  William 
Grant, 

the  intention  to  shut  up  the  port  should  not  only  be  generally 
made  known  to  the  vessels  navigating  the  seas  in  the  vicinity, 
but  that  it  was  the  duty  of  the  blockaders  to  maintain  such  a 
force  as  would  be  of  itself  sufficient  to  enforce  the  blockade. 
This  could  only  be  effected  by  keeping  a number  of  vessels  on 
the  different  stations,  so  cummunicating  with  each  other  as  to 
be  able  to  intercept  all  vessels  attempting  to  enter  the  ports  of 
the  island.^  ' 

A later  admiralty  judge  has  thus  expressed  himself : 

The  maintenance  of  a blockade  must  always  be  a question  of 
degree — of  the  degree  of  danger  attending  ships  going  into  or 
leaving  a port.  Nothing  is  further  from  my  intention,  nor  indeed 

' The  Betsey  1 C.  Robinson  92a,  (1798). 

^ The  Nancy,  I Acton  57,  (1799). 


720 


THE  HAGUE  PEACE  CONFERENCES 


more  opposed  to  my  notions,  than  any  retraction  of  the  rule  that 
a blockade  must  be  sufficiently  maintained;  but  it  is  perfectly 
obvious  that  no  force  could  bar  the  entrance  to  absolute  cer- 
tainty; that  vessels  may  get  in  and  get  out  during  the  night  or 
fogs  or  violent  winds,  or  occasional  absence;  that  it  is  most  dif- 
ficult to  judge  from  numbers  alone.  Hence,  I believe  that  in 
every  case  the  inquiry  has  been,  whether  the  force  was  com- 
plete and  present  and  if  so,  the  performance  of  the  duty  was 
presumed;  and  I think  I can  safely  assert  that  in  no  case  was  a 
blockade  held  to  be  bad,  when  the  blockading  force  was  on  the 
spot  or  near  thereto  on  the  ground  of  vessels  entering  into  or 
escaping  from  the  port  where  such  ingress  or  egress  did  not 
take  place  with  the  consent  of  the  blockading  squadrond 

The  language  of  the  courts  was  not  always  the  practice  of 
the  admirals,  and  the  undoubted  right  of  blockade  was  perhaps 
more  honored  in  the  breach  than  in  the  observance.  The 
history  of  blockade  is  largely  a chronicle  of  abuse.  It  was 
easy  and  therefore  of  frequent  occurrence,  to  aimounce  that 
on  and  after  such  a day  certain  ports  of  the  enemy,  or  perhaps 
the  whole  coast  was  closed  to  neutral  commerce,  and  that  any 
neutral  vessel  setting  sail  for  the  specified  region  would  be 
lawful  prize.  It  was,  however,  difficult  to  make  this  paper 
blockade  good  and  effective  in  fact.  The  continental  wars, 
springing  out  of  the  French  Revolution,  were  periods  of  dis- 
organization in  which  the  armed  hand  blotted  out  even  the 
semblance  of  right.  Paper  blockade  was  answered  by  paper 
blockade,  until  neutral  commerce  was  either  driven  from  the 
seas,  or  the  neutral,  harassed  beyond  endurance  by  decree  and 
counter-decree,  and  finding  embargoes  and  non-intercourse 
powerless  to  redress  a series  of  wrongs  and  outrages,  aggra- 
vated by  impressment  of  its  seamen,  grasped  the  sword  in  self- 
defense  as  the  only  means  of  maintaining  its  just  rights. 

The  fictitious  blockades  proclaimed  by  Great  Britain  and 
made  the  pretext  for  violating  the  commerce  of  neutral  nations 
have  been  one  of  the  greatest  abuses  ever  committed  on  the 
high  seas.  During  the  late  war  they  were  carried  to  an  extrav- 
agance which  would  have  been  ridiculous,  if  in  their  effects  they 
had  not  inflicted  such  serious  and  extensive  injuries  on  neutral 

' Per  Dr.  Lushington  in  The  Franciska,  Spinks,  287. 


CONTKABAND 


721 


nations.  Ports  were  proclaimed  in  a state  of  blockade  previous 
to  the  arrival  of  any  force  at  them,  were  considered  in  that  state 
without  regard  to  intermissions  in  the  presence  of  the  blockad- 
ing force  and  the  proclamations  left  in  operation  after  its  final 
departure;  the  British  cruisers  during  the  whole  time  seizing 
every  vessel  bound  to  such  ports,  at  whatever  distance  from 
them,  and  the  British  prize  courts  pronouncing  condemnations 
wherever  a knowledge  of  the  proclamation  at  the  time  of  sail- 
ing could  be  presumed,  although  it  might  afterwards  be  known 
that  no  real  blockade  existed.  The  whole  scene  was  a perfect 
mockery  in  which  fact  was  sacrificed  to  form  and  right  to  power 
and  plunder.  The  United  States  were  among  the  greatest 
sufferers;  and  would  have  been  still  more  so,  if  redress  for 
some  of  the  spoliations  proceeding  from  this  source  had 
not  fallen  within  the  provisions  of  an  article  in  the  Treaty  of 
1794.1 

The  abuse  of  the  system  led  the  Congress  of  Paris  in  1856  to 
declare  that  “blockades  in  order  to  be  binding,  must  be  effec- 
tive; that  is  to  say,  maintained  by  a force  sufficient  really  to 
prohibit  access  to  the  enemy’s  coast.” 

But  the  Declaration  of  Paris,  in  proclaiming  effectiveness  as 
a requirement  of  international  law,  left  untouched  and  un- 
solved other  and  necessary  parts  of  the  problem.  How  is 
the  effective  blockade  to  be  declared  to  the  neutral  nations  and 
brought  to  the  actual  or  constructive  notice  of  the  neutral 
shipper?  Is  the  effective  blockade  violated  by  an  attempt  in 
the  teeth  of  the  blockading  squadron,  or  is  the  intent  to  violate 
the  blockade  formed  many  miles  distant  in  the  home  port 
sufficiently  manifested  to  permit  capture  upon  the  high  seas 
before  an  actual  attempt  has  been  made  to  break  the  blockade 
and  enter  the  port?  Is  the  ultimate  destination  of  the  cargo, 
as  in  the  case  of  contraband  determinative,  so  that  transfer  of 
cargo  at  a neutral  port  is  without  legal  effect,  provided  the 
ultimate  intent  be  to  violate  the  blockade?  Does  the  block- 
ade when  officially  announced  and  proclaimed  continue  until 
it  is  officially  removed,  irrespective  of  the  fact  that  the  block- 
ade has  in  fact  ceased  to  exist? 

These  and  other  important  questions  were  not  settled  by 

' Moore’s  International  Law  Digest,  Vol.  VII,  p.  797. 


722 


THE  HAGUE  PEACE  CONFERENCES 


the  Declaration  of  Paris.  Their  settlement  is  thus  left  to  the 
municipal  law  of  the  various  States,  and  cases  arising  under 
them  have  destroyed  commerce,  annoyed  and  embarrassed 
foreign  offices,  and  after  years  of  negotiation  have  found  their 
way  to  mixed  commissions  for  arbitration  and  settlement.^ 

These  are  questions  worthy  of  a conference  to  promote  peace 
by  removing  grounds  of  controversy.  The  Russian  pro- 
gram enumerated  blockade  among  the  subjects  for  consid- 
eration, and  the  Fourth  Commission  undertook  the  settlement 
of  the  question  without  reaching  agreement.  Indeed,  its  failure 
was  more  marked  and  pitiable  than  in  contraband.  The 
underlying  reason  was,  however,  the  same:  the  conflict  of 
neutral  and  belligerent  interests.  The  blockade  of  southern 
ports  during  the  Civil  War;  the  seizure  and  confiscation  of 
vessels  and  their  cargo  before  the  port  was  reached ; the  exten- 
sion of  the  doctrine  of  continuous  voyage  to  blockade  isolated 
the  South  and  made  its  collapse  on  the  field  of  battle  a mere 
question  of  time.  It  is  true  that  American  theory  and  prac- 
tice caused  suffering  to  neutral  nations,  and  either  swept 
neutral  commerce  from  the  seas,  or  subjected  it  to  visit  and 
search,  but  the  success  of  military  operations  involving,  it  may 
be,  national  existence,  either  required  or  justified  it.  Great 
Britain  and  the  United  States,  for  Anglo-American  jurispru- 
dence speaks  the  same  language,  were  unwilling  to  accept 
the  theory  of  the  continent,  which  permits  a neutral  to 
approach  the  blockaded  port,  and  requires  the  belligerent  to 
note  upon  the  papers  of  the  blockade  runner  a warning  not 
to  attempt  the  offense  and  adjourn  capture  until  the  vessel 
thus  warned  should  attempt  to  enter  the  port.  The  Anglo- 
American  practice  is  severe,  but  supposing  that  the  right  of 
blockade  is  permitted  and  recognized,  there  seems  no  reason 
why  a belligerent  should  permit,  if  the  blockade  is  effective, 
neutral  vessels  to  hover  in  the  presence  of  a blockaded  port, 
awaiting  opportunity  to  steal  into  port  during  cover  of  fog 
and  stress  of  weather,  or  during  the  temporary  or  accidental 
absence  of  a vessel  or  squadron. 

' For  the  practice  of  the  United  States,  see  Moore’s  International  Law 
Digest,  Vol.  VII,  pp.  780-858. 


BLOCKADE 


723 


The  Law  of  Nations  and  its  practice  permit  a belligerent  to 
capture  a vessel  attempting  to  enter  a blockaded  port,  and, 
while  severe,  it  does  not  seem  unjustifiable  to  capture  the 
vessel  the  moment  it  is  pursuing  the  intent  even  although  at 
a distance  from  the  port. 

In  order  to  harmonize  and  render  uniform  the  law  of  block- 
ade, the  Italian  Delegation  on  August  2,  1907,  presented  the 
following  project  to  the  Fourth  Commission: 

1.  The  blockade  to  be  effective  must  be  declared  and  noti- 
fied; 

2.  The  blockade  is  effective  when  maintained  by  a naval 
force  really  sufficient  to  prevent  the  entry  and  stationed  in  such 
a manner  so  as  to  create  an  evident  danger  for  the  vessels  seek- 
ing to  force  the  entry. 

The  blockade  is  not  considered  raised  if  stress  of  weather  has 
forced  the  blockading  squadron  momentarily  from  their  station. 

3.  The  declaration  of  blockade  must  determine  the  begin- 
ning of  the  blockade,  its  limits  by  longitude  and  latitude,  and 
the  delay  within  which  neutral  vessels,  which  entered  the  port 
before  the  blockade,  are  permitted  to  leave. 

4.  The  blockade  must  be  notified  to  the  authorities  of  the 
blockaded  port  and  to  the  governments  of  neutral  States. 

If  this  notification  has  not  been  made  or  if  the  vessel  approach- 
ing the  blockaded  port  did  not  have  knowledge  of  the  blockade, 
the  notification  must  be  made  to  the  vessel,  by  an  officer  of  the 
blockading  squadron,  and  entered  upon  the  ship’s  papers. 

5.  A vessel  shall  not  be  seized  as  guilty  of  violating  the 
blockade  until  it  attempts  to  cross  the  lines  of  a binding  block- 
ade. 

6.  Vessels  may  enter  a blockaded  port  in  case  of  distress 
certified  to  by  the  commander  of  the  blockading  squadron. 

7.  The  vessel  seized  for  violation  of  the  blockade  can  be 
confiscated  as  well  as  its  cargo,  unless  the  owner  of  the  cargo 
proves  that  the  attempt  to  violate  the  blockade  was  without  his 
knowledge.  ‘ 

A Brazilian  amendment,  while  accepting  the  Italian  prop- 
osition, sought  to  limit  the  blockade  within  certain  fixed 
geographical  lines  to  tax  vessels,  leaving  port  seven  days 

' La  Deuxieme  Conference  Internationale  de  la  Paix,  1907,  Actes  et 
Documents,  Vol.  I,  p.  261. 

^ The  blockade  is  only  effective  in  conditions  mentioned  in  the  Italian 
proposition  (Article  2)  when  hmited  to  ports,  roadsteads,  harbors,  bays  or 
other  landing  places  on  the  enemy  coast,  as  well  as  entries  thereto. 


724 


THE  HAGUE  PEACE  CONFERENCES 


after  notification,  with  knowledge  of  the  blockade ; to  require 
belligerents  to  notify  changes  of  the  blockade.^ 

The  Brazilian  was  not  inconsistent  with  the  Italian  proposi- 
tion, but  sought  to  give  it  greater  definiteness  to  meet  local 
conditions. 

The  American  and  British  amendments  admitted  the  defini- 
tion of  blockade  and  the  requirement  of  notification  but  pro- 
posed the  following  substitute  for  Article  5 : 

Every  vessel  which,  after  the  notification,  sails  for  a blockaded 
port  or  place,  or  which  attempts  to  force  the  blockade,  is  liable 
to  seizure  for  the  violation  of  blockade.^ 

Another  amendment  proposed  the  omission  of  “longitude  and 
latitude”  from  the  third  article,  and  Great  Britain,  accepting 
the  various  American  amendments,  proposed  in  addition  the 
substitution  of  “real”  for  “evident”  in  the  first  paragraph  of 
Article  2,  and  the  addition  of  the  word  “neutral”  before 
“vessel  approaching”  in  the  second  paragraph  of  Article  4. 

As  thus  amended  the  Italian  project  would  have  been  largely 
declaratory  of  Anglo-American  practice,  but  would  have  been 
irreconcilably  in  opposition  to  the  continental  theory. 

Referred  to  the  Committee  of  Examination,  a single  session 
showed  the  hopelessness  of  agreement;  for  the  price  asked  was 
the  surrender  of  the  Anglo-American  law  of  blockade,  built 
up  by  generations  of  practice  and  incorporated  in  the  judicial 
decisions  of  Great  Britain  and  the  United  States.  When  a 
question  seemed  difficult  and  especially  when  unacceptable, 
even  although  not  over-difficult,  a favorite  method  of  closing 
debate  was  to  suggest  that  the  subject  was  not  ripe  for  dis- 
cussion. In  this  case  the  subject  was  indeed  ripe  for  discus- 
sion and  much  needed  settlement,  but  the  Anglo-Saxon  who 


* The  Conference  shall  fix  a certain  number  of  miles  counted  from  the 
coast  at  low  tide  or  by  an  imaginary  line  drawn  between  the  extremities 
of  the  port  or  bay  as  well  as  from  the  said  extremities  along  the  coast,  in 
order  to  hmit  the  space  in  which  the  blockading  squadron  shall  enforce  the 
blockade. — La  Deuxidme  Conference  Internationale  de  la  Paix,  1907,  Vol. 

Ill,  p.  lies. 

=>Ibid.,  p.  261. 


DESTRUCTION  OF  NEUTRAL  PRIZES 


725 


has  made  so  much  of  the  law  of  blockade  was  not  ready  to 
surrender.  Therefore^  Sir  Ernest  Satow  stated  roundly  that : 

Given  the  difference  between  the  two  systems  of  practice  which 
may  be  designed  by  the  names  of  the  Continental  and  Anglo- 
American  systems,  we  believe  that  it  is  impossible  for  the  mo- 
ment to  reach  a compromise.  As  his  excellency,  the  President 
of  the  Fourth  Commission  (de  Martens)  has  indicated,  the  ques- 
tion of  blockade  is  not  literally  included  in  the  program  pro- 
posed by  the  Russian  Government.  Therefore  the  British  Gov- 
ernment did  not  furnish  us  with  instructions  on  this  subject 
before  the  meeting  of  the  Conference.  Time  is  lacking  too  for 
a thorough  examination  of  the  question,  and  to  attempt  a recon- 
ciliation of  the  divergent  views  of  the  two  schools.  In  order 
to  arrive  at  a compromise,  concessions  must  be  made  on  both 
sides  for  which  neither  party  is  perhaps  prepared.  It  therefore 
appears  to  our  delegation  preferable  to  suspend  the  discussion 
of  this  question.^ 

The  Committee  of  Examination  shared  the  view  voiced  by 
the  British  delegation,  and  the  subject  of  blockade  was  rele- 
gated to  a more  favorable  future. 

4.  The  Destruction  of  Neutral  Prizes 

With  contraband  and  blockade  the  question  of  the  sinking  of 
neutral  prizes  is  connected  in  no  uncertain  way,  because,  if 
a neutral  vessel  does  not  carry  contraband,  and  if  not  destined 
to  a blockaded  port,  it  is  not  subject  to  seizure,  much  less  to 
confiscation,  although  it  may  be  annoyed  by  visit  and  search 
in  order  to  ascertain  and  establish  its  neutral  character.  But 
the  question — like  the  immunity  of  private  property  of  the 
enemy — may  be  considered  separately  and  on  principle . There 
is  no  adjudged  case  in  British  or  American  courts  on  the  ques- 
tion, although  dicta  of  Lord  Stowell,  torn  from  their  natural 
connection  and  surroundings  have  been  dragged  into  the 
service.  It  cannot  be  said,  however,  that  we  are  without  prec- 
edent, for  the  Russo-Japanese  War  furnished  more  than  one 
example  of  a belligerent  sinking  a neutral  which  it  was  unable 

' La  Deuxi^me  Conf4reiice  Internationale  de  la  Paix,  1907,  Actes  et 
Documents,  Vol.  Ill,  Committee  of  Examination,  Fifth  Session,  p.  965. 


726 


THE  HAGUE  PEACE  CONFERENCES 


to  send  into  port,  either  because  the  prize  was  unsea  worthy  or 
the  port  was  far  awayd  This  may  be  a convenient  method  for 
a buccaneer  to  destroy  booty  he  cannot  carry  away,  and  it 
may  be  permitted  in  exceptional  cases  to  sink  an  enemy 
prize  rather  than  to  send  it  into  port  for  condemnation;  but 
it  is  inconsistent  with  the  barest  right  of  a neutral  to  sink 
property  whose  guilt  has  not  been  established  by  a judicial 
proceeding.  The  Confederate  Senunes  was  accused  of  turning 
his  quarter  deck  into  a Prize  Court,  and  decreeing  the  destruc- 
tion of  property  he  could  not  use  or  send  into  port,  but  Semmes 
did  not  prey  upon  neutral  commerce.  The  title  to  enemy 
property  passes  by  capture;  the  title  to  neutral  property 
by  adjudication,  and  the  necessity,  recognized  even  by  the  parti- 
sans of  destruction,  to  preserve  the  papers  and  have  the  con- 
fiscation of  the  vessel  decreed  by  a Prize  Court,  is  in  reality  a 
recognition  of  the  unlawfulness  of  their  claim.  The  statement 
that  a vessel  sacrifices  its  right  to  judicial  decision  by  unneu- 
tral conduct,  is  to  assume  the  guilt  which  results  from  a judicial 
proceeding.  The  admission  that  unlawful  seizure  and  de- 
struction entitle  the  neutral  to  compensation  and  indemnity 
through  diplomatic  channels,  is  a claim  to  commit  an  unlawful 
act  subject  to  payment  when  convenient  or  forced  by  pressure 
from  a neutral  government.  We  do  not  permit  this  in  private 
and  there  is  no  reason  to  permit  it  in  public  law.  The  further 
plea  that  many  countries  do  not  possess  ports  near  the  scene 
of  action  to  which  the  prize  can  be  sent  is  a conclusive  reason 
why  the  vessel  should  be  released,  and  if  it  be  finally  said  that 
prohibition  to  destroy  the  neutral  prize  puts  a belligerent 
at  a disadvantage  with  Great  Britain,  for  example,  which 
possesses  ports  all  over  the  world,  the  reply  is  that  Great 
Britain  has  acquired  them  at  a vast  expense  of  blood  and 
treasure,  and  that  there  is  no  reason  why  the  British  taxpayer 
should  share  or  renounce  an  advantage  at  the  instance  of  a 
jealous  rival.  One  solution  of  the  difficulty  would  be  to 

‘ For  the  cases  of  the  sinking  of  the  Thea  (German)  and  the  Knight 
Commander  (British)  by  the  Russians  in  July,  1904,  see  Hershey’s  Inter- 
national Law  and  Diplomacy  of  the  Russo-Japanese  War,  pp.  143-159. 


DESTRUCTION  OP  NEUTRAL  PRIZES 


727 


permit  the  neutral  prize  to  be  sent  to  a neutral  port  and  there 
lie  until  condemned  or  released  by  judicial  procedure  in  the 
court  of  the  captor,  as  is  proposed  in  Article  23  of  the  conven- 
tion concerning  rights  and  duties  of  neutrals  in  naval  war;  but 
there  seems  no  reason  why  a neutral  should,  without  his  own 
affirmative  act,  have  his  harbors  and  ports  made  the  basis 
of  enemy  operations  and  filled  with  prizes. 

The  seizure  of  property  upon  suspicion,  its  confiscation  after 
judicial  decision  is  sufficient  injury  to  the  neutral  and  neutral 
commerce ; to  ask  that  he  permit  his  property  to  be  sunk,  with 
the  promise  of  a trial  or  compensation  in  the  distant  future, 
is  to  ask  the  neutral  to  renounce  the  rights  and  privileges  of 
neutrality,  not  merely  in  the  interest  of  the  belligerent,  but  to  be 
a party  to  the  introduction  of  a principle  unknown  to  inter- 
national law  and  unworthy  to  be  incorporated  in  it.  It  is  a 
stranger  to  the  Law  of  Nations;  conceived  in  sin,  it  is  begotten 
in  iniquity  and  known  only  in  malpractice.  When  challenged 
to  justify  its  extension  to  international  law,  Dr.  Kriege  cited  a 
disputed  dictum  of  Lord  Stowell  and  a statement  of  English 
law  in  an  American  text-book,  but  Sir  Ernest  Satow  and 
General  Davis  on  behalf  of  Great  Britain  and  the  United  States 
immediately  repudiated  the  doctrine.  The  partisans  there- 
upon forsook  the  imcongenial  field  de  lege  lata  and  displayed 
their  ingenuity  in  the  more  pleasing  prospect  de  lege  ferenda. 

The  subject  figured  in  the  program  by  reason  of  “mal- 
practice” in  the  Russo-Japanese  War,  and  friend  and  opponent 
presented  projects.  The  discussion  was  animated  both  in  com- 
mission and  in  the  Committee  of  Examination,  and  if  no  tem- 
per was  lost  nothing  was  gained.  The  result  as  in  contraband 
and  blockade,  was  a failure  to  agree.  Russia  presented  the 
case  for  the  protagonists  of  the  doctrine;  Great  Britain  and  the 
United  States  led  the  opposition.  The  project  of  the  partisans 
as  presented  by  Russia  was  in  the  following  terms;  The 
destruction  of  a neutral  prize  is  forbidden  except  in  cases  in 
which  its  preservation  would  compromise  the  security  of  the 
captor's  vessel  or  the  success  of  its  operations.  The  captor 
can  only  use  the  right  of  destruction  with  the  greatest  reserve. 


728 


THE  HAGUE  PEACE  CONFERENCES 


and  must  previously  transship  the  crew,  and,  as  far  as  possible 
the  cargo,  and  preserve  in  any  event  all  the  papers  on  board 
and  other  objects  necessary  to  the  judgment  of  a Prize  Court 
and  the  establishment  of  indemnities  in  a proper  case. 

It  is  understood  that  in  case  of  seizure  or  destruction  con- 
demned as  illegal  by  a Prize  Court  or  competent  authorities,  the 
parties  in  interest  have  an  action  or  claim  for  damages. 

The  British  and  American  projects  were  brief,  to  the  point, 
identical  in  meaning.  First  the  British  formula : 

The  destruction  of  a neutral  prize  by  the  captor  is  forbidden. 
The  captor  must  release  every  neutral  vessel  which  he  cannot 
send  before  a court  of  prize. 

The  American  was  briefer  and  a trifle  more  pointed: 

If  for  any  reason  whatever,  a neutral  captured  vessel  can- 
not be  brought  in  for  adjudication,  it  must  be  released. 

Sir  Ernest  Satow  showed  that  the  Institute  of  International 
Law  had  given  great  consideration  to  the  subject  in  its  sessions 
at  Wiesbaden  (1881)  and  Turin  (1882)  only  to  reject  the 
doctrine.  Dr.  Kriege  laid  great  reliance  upon  Professor 
Holland’s  letters  to  the  Times  that  the  doctrine  either  is  or  has 
been  allowed  by  the  laws  of  France,  United  States,  Japan, 
Russia,  and  recognized  by  Germany,  but  whether  recognized 
or  not  in  the  past,  military  necessity  required  it  in  the  future. 

Article  23  of  the  convention  concerning  the  rights  and  duties 
of  neutrals  in  naval  warfare  recognized  the  right  of  the  neutral 
to  permit  an  enemy’s  prize  to  remain  in  its  ports  pending  adju- 
dication in  the  captor’s  country.  This  article  had  doubtless 
much  influence  upon  the  favorable  vote  of  the  committee 
upon  the  Anglo-American  project  (11  for,  4 against;  no  absten- 
tions), as  was  expressly  stated  by  Count  Tornielli  of  the 
Italian  delegation.  The  Russian  project  permitting  destruc- 
tion received  in  committee  a slight  majority  (6  for,  4 against, 
7 abstentions). 

There  was  no  middle  ground,  although  Article  23  of  the  con- 
vention on  the  rights  and  duties  of  neutrals  in  naval  war  may 
tend  to  preserve  the  prize  in  the  absence  of  any  other  agi’ee- 


DESTRUCTION  OF  NEUTRAL  PRIZES 


729 


ment  between  the  nations.  But  Great  Britain,  Japan,  and  the 
United  States  opposed  this  article  and  have  excluded  it  from 
their  ratification.  The  result  is  a profound  divergence  of 
opinion  with  no  immediate  or  prospective  solution  of  the 
difficulty.  It  is  safe  to  assume  that  Great  Britain,  Japan  and 
the  United  States  will  not  permit  their  property  to  be  sunk 
at  the  will  and  pleasure  of  an  officer  acting  under  excitement, 
and  it  is  equally  safe  to  predict  that  the  partisans  of  the  doc- 
trine will  practice  it  on  less  powerful  neutrals. 

Great  Britain  has  invited  the  leading'  maritime  nations  to  a 
Conference  at  London  in  the  fall  of  1908,  and  the  subjects 
of  Contraband,  Blockade  and  the  Destruction  of  Neutral 
Prizes  figure  in  the  program. 

Notwithstanding  the  divergence  between  Continental  doc- 
trine and  Anglo-American  jurisprudence  a compromise  is 
possible  if  the  representatives  of  the  Powers  earnestly  desire 
to  reach  an  agreement.  The  renunciation  of  conditional  con- 
traband is  in  the  interest  of  neutrals  and  it  is  not  improbable 
that  prospective  belligerents  may  consent  to  the  sacrifice. 
The  limitation  of  capture  to  the  neighborhood  of  the  blockaded 
port  would  be  the  surrender  of  an  extreme  right  not  often 
exercised  because  most  captures  are  made  within  range  of  the 
blockaded  port.  The  retention  of  destination  of  the  cargo 
rather  than  the  ostensible  destination  of  the  vessel  is  in  the 
interest  of  fair-dealing,  and  the  doctrine  of  continuous  voy- 
ages in  the  matter  of  contraband  has  commended  itself  to 
such  a conservative  and  enlightened  body  as  the  Institute 
of  International  Law.  The  principle  of  continuous  voyages 
as  applied  to  blockade  has  not  met  with  general  approval  and 
might  be  renounced,  although  the  doctrine  was  highly  ser- 
viceable in  the  Civil  War. 

The  shipper  will  conform  to  any  system  provided  it  is  cer- 
tain and  known  in  advance  and  certainty  is  more  valuable 
to  commerce  than  scientific  precision  or  theoretical  correct- 
ness. It  is  in  the  interest  of  belligerent  and  neutral  that  one 
and  the  same  law  should  prevail,  whether  it  be  the  Continental 
or  the  Anglo-American  system.  Special  interests  may  well 


730 


THE  HAGUE  PEACE  CONFERENCES 


yield  to  the  universal  good,  and  it  cannot  be  doubted  that  a 
single  and  clearly  defined  system  would  meet  with  general 
approval,  even  although  favorite  doctrines  be  renounced  and 
national  practice  be  modified.  It  is  not  improbable  that  the 
Maritime  Conference  may  reach  a workable  compromise  on 
contraband  and  blockade;  but  the  legalization  of  the  destruc- 
tion of  neutral  prize  before  condemnation  is  neither  in  the 
interest  of  the  neutral  nor  conformed  to  the  elemental  principle 
of  justice,  that  prescribes  a hearing  before  condemnation. ^ 

^ Post  Scriptum.  The  Declaration  of  London,  adopted|by  the  Naval 
Conference  on  February  26,  1909,  contains  important  provisions  relating 
to  Contraband  (Articles  22-24);  Blockade  (Articles  1-21),  and  the  Destruc- 
tion of  Neutral  Prizes  (Articles  48-54). 

In  regard  to  contraband,  the  Declaration  adopts  substantially  The 
Hague  hst  of  Absolute  Contraband  (Article  22),  maintains  Conditional  Con- 
traband (Article  24),  and  enumerates  an  important  list  of  free  articles 
(Article  28);  permits  additions  to  hst  of  absolute  and  conditional  contra- 
band if  properly  notified  to  neutral  powers  (Articles  23,  26) ; retains  con- 
tinuous voyage  for  absolute  contraband  (Article  30);  abolishes  it  for  con- 
ditional contraband  (Article  35),  but  recognizes  the  doctrine  for  countries 
having  no  seaport.  (Article  36.) 

The  provisions  concerning  blockade  are  a happy  compromise  between 
the  Anglo-American  and  Continental  system,  by  which  capture  is  allowed 
within  an  undefined  and  therefore  unlimited  radius  of  action  (Article  17). 
Continuous  voyage  is  renoimced  (Article  19),  but  as  the  blockade  may  be 
made  effective  according  to  Anglo-American  practice,  the  sacrifice  of  the 
doctrine  is  more  apparent  than  real. 

In  the  matter  of  neutral  prizes,  the  general  principle  is  recognized  that 
they  cannot  be  destroyed  (Article  48),  but  the  Declaration  permits  destruc- 
tion of  a neutral  vessel  subject  to  confiscation  if  observance  of  Article  48 
would  compromise  the  security  of  the  man-of-war  or  the  success  of  the 
operations  in  which  it  is  actually  engaged  (Article  49).  Ample  provision 
for  indemnities  and  judicial  remedy  make  the  exception  not  unacceptable 
(Articles  50-54). 

The  British  Government  will  issue  an  oflScial  Report  on  the  Naval  Con- 
ference of  London  containing  the  proceedings  in  full.  For  the  text  in  the 
Declaration,  see  supplement  to  the  July  number  of  the  American  Journal 
of  International  Law.  (1909.) 


CHAPTER  XVI 


RECOMMENDATION  FOR  A THIRD  PEACE 
CONFERENCE 

Concluding  Remarks 

The  First  Conference  of  1899  was  an  experiment  for  which 
there  were  precedents,  although  there  was  perhaps  no  single 
precedent  like  it  in  all  respects.  Congresses  or  conferences 
have  been  familiar  since  the  Congress  of  Westphalia,  which 
may  be  said  to  mark  the  conscious  beginning  of  modem 
international  relations,  and  at  various  times  conferences  or 
congresses  have  been  called,  usually  at  the  end  of  war,  to 
settle  the  terms  of  peace.  Familiar  examples  of  peace  con- 
ferences, in  the  sense  that  they  were  assembled  to  establish 
peace,  are  Westphalia,  1648;  Utrecht,  1713-1714;  Vienna,  1814- 
1815;  Paris,  1856;  and  Berlin,  1878.  Each  one  of  these  confer- 
ences, to  use  a single  expression — for  congress  and  conference 
are  practically  synonymous — was  preceded  by  a war  and  owed 
its  existence  to  war,  although  its  purpose  was  not  to  devise 
means  for  establishing  peace  in  general,  but  to  conclude  a 
special  peace  by  adjusting  the  controversy  out  of  which  the 
war  sprang.  In  some  of  the  later  conferences — notably 
the  Congress  of  Paris  in  1856 — questions  of  a general  nature 
were  discussed  and  an  agreement  reached  upon  questions  of 
maritime  law,  but  the  codification  of  maritime  warfare  begun 
by  the  Congress  of  Paris  was  incidental  to  its  calling.  The 
fact,  however,  that  the  congress  succeeded  in  abolishing  pri- 
vateering, in  requiring  that  blockades  be  binding  to  be  effec- 
tive, that  the  neutral  flag  covers  enemy’s  goods,  and  that  neu- 
tral goods  are  safe  in  enemy  bottoms  furnished  a precedent  for 
a conference  which  should  deal  with  matters  of  a general  interest, 
even  although  its  labors  should  be  restricted  to  a small  portion 

731 


732 


THE  HAGUE  PEACE  CONFERENCES 


of  international  law.  The  usefulness  of  the  conference  was 
thus  demonstrated,  and  in  recent  times  conferences  have 
been  called  with  no  war  immediately  preceding  their  call, 
although  such  conferences  have  dealt  with  disputes  arising  out 
of  war  or  have  sought  to  prevent  disputes  by  settling  in  advance 
usages  and  customs  of  war.  Thus,  the  Geneva  Conference  of 
1864  called  by  Switzerland  to  consider  the  treatment  of  sick 
and  wounded  upon  the  battlefield  was  not  preceded  by  war  in 
the  sense  that  its  mission  was  to  end  hostilities,  although  the 
neglect  of  the  sick  and  wounded  at  Solferino  in  the  war  of 
1859  between  France  and  Austria  prompted  the  call.  In  the 
same  way  the  Geneva  Conference  of  1868  was  not  a war  con- 
ference, although  its  convocation  was  due  to  the  needless  loss 
of  life  in  the  naval  battle  of  Lissa  between  Italy  and  Austria 
in  1866.  The  conference  sought  to  extend  to  naval  war  the 
beneficent  principles  of  the  Geneva  Convention  of  1864  con- 
cerning the  sick  and  wounded  in  war  on  land. 

The  conference  called  by  Alexander  II  and  which  formulated 
the  Declaration  of  St.  Petersburg  of  1868  was  not  immediately 
preceded  by  a war,  although  its  results  were  limited  to  the 
restriction  of  the  means  of  destruction  in  future  warfare.  In 
like  manner  the  Brussels  Conference  of  1874  was  not  convoked 
by  belligerents  or  by  powers  on  behalf  of  belligerents,  although 
the  Franco-German  War  of  1870  was  undoubtedly  the  cause 
for  its  convocation. 

This  second  group  of  conferences  may  be  called  peace  con- 
ferences in  that  they  met  in  times  of  peace,  but  the  program 
dealt  exclusively  with  the  usages  and  customs  of  war. 

A third  type  is  the  conference  meeting  in  time  of  peace  to 
consider  the  means  whereby  peace  may  be  preserved,  and  of 
this  class  the  Kongo  Conference  of  1884—1885  at  Berlin,  and  the 
Pan-American  Conference  of  1889-1890  at  Washington  are 
familiar  illustrations.  The  Berlin  Conference  dealt  with  the 
Kongo  question,  and  by  regulating  traffic  upon  the  Kongo 
and  its  tributaries,  by  establishing  boundaries  of  the  States 
claiming  territory  in  the  neighborhood  of  the  Kongo,  and 
adopting  rules  for  the  occupation  of  Africa,  removed  a fertile 


RECOMMENDATION  FOR  A THIRD  PEACE  CONFERENCE  733 


source  of  conflict.  The  Conference  of  Berlin  was  not  preceded 
by  a war,  nor  was  it  followed  by  one;  it  was,  in  the  highest 
sense  of  the  word,  preventive.  The  Pan-American  Confer- 
ence of  1889-1890  due  to  the  initiative  of  Mr.  James  G.  Blaine, 
was  assembled  in  the  interest  of  peace.  Its  purpose  was  to 
draw  the  American  States  closer  together,  and,  by  means  of 
arbitration,  to  provide  a substitute  for  war. 

It  is  thus  seen  that  the  idea  of  an  international  conference 
was  familiar  both  to  the  old  and  the  new  world,  and  that  the 
Peace  Conference  of  1899  was  but  the  culmination  of,  rather 
than  the  first  step  in  the  development.  The  war  conference 
showed  not  only  that  peace  might  be  established  by  a meet- 
ing of  the  powers,  but  also  that  matters  of  general  interest 
might  be  discussed  and  regulated  at  such  a conference  in 
addition  to  the  questions  at  issue  between  belligerents.  The 
second  class  furnished  a precedent  for  a conference  called  in 
time  of  peace  to  regulate  the  laws  and  customs  of  warfare, 
whereas  the  third  class  demonstrated  the  usefulness  of  a con- 
ference to  discuss  and  regulate  questions  disconnected  from 
war  or  only  remotely  connected  with  it.  The  First  Hague 
Conference  furnished  the  priceless  precedent  of  a conference 
meeting  in  time  of  profound  peace  to  discuss  not  merely  ques- 
tions of  armament  and  the  laws  and  customs  of  war,  but  at 
one  and  the  same  time  the  means  whereby  conflicts  between 
States  might  be  settled  by  a resort,  not  to  arms,  but  to  good 
offices,  mediation  and  arbitration. 

The  First  Conference  was  therefore  rather  a development 
than  an  experiment,  although  if  the  labors  of  the  Conference 
had  failed  to  justify  its  call,  it  is  doubtful  whether  a second  con- 
ference would  have  met  in  the  near  future.  The  success,  how- 
ever, of  the  experiment  seems  to  have  made  the  Conference  an 
institution,  and  the  action  of  the  Second  Conference  in  provid- 
ing for  a successor  leads  to  the  hope  that  conferences  will 
regularly  assemble  in  response  to  an  elightened  and  insistent 
public  opinion.  The  First  Conference  looked  forward  to  a 
successor;  the  Second  Conference  provided  a time  within 
which  its  successor  should  meet.  The  President  of  the  First 


734 


THE  HAGUE  PEACE  CONFERENCES 


Conference,  M.  de  Staal,  is  reported  by  Dr.  Andrew  D.  White, 
in  his  interesting  autobiography,  to  have  considered  a call  for 
a second  conference  as  probable  within  a year  from  the 
adjournment  of  the  first  but  the  war  in  South  Africa  between 
Great  Britain  and  the  Transvaal  and  the  Russo-Japanese  war 
of  1904  postponed  the  call.  At  the  request  of  the  Interparlia- 
mentary Union,  held  at  St.  Louis  in  1904,  President  Roosevelt 
sounded  the  Powers  as  to  their  willingness  to  attend  a con- 
ference, and  the  conclusion  of  the  Russo-Japanese  war, 
brought  about  by  the  good  offices  of  President  Roosevelt, 
enabled  Russia  to  assume  the  initiative  for  a second  conference, 
which  assembled  at  The  Hague  on  the  15th  day  of  June,  1907, 
and  adjourned  on  October  18  of  the  same  year. 

That  the  First  Conference  had  in  mind  a successor  is  evi- 
denced by  the  fact  that  it  expressed  “the  wish  that  the  ques- 
tions of  the  rights  and  duties  of  neutrals  may  be  inserted  in 
the  program  of  a conference  in  the  near  future;”  that  the 
“proposal  which  contemplates  the  declaration  of  the  inviola- 
bility of  private  property  in  naval  warfare  may  be  referred 
to  a subsequent  conference  for  consideration;”  that  the 
“proposal  to  settle  the  question  of  the  bombardment  of  ports, 
towns,  and  villages  by  a naval  force  may  be  referred  to  a sub- 
sequent conference  for  consideration.  ” It  will  be  noted  that 
the  First  Conference  did  not  indicate  any  date  at  which  the 
future  conference  should  assemble,  whereas  the  Second  Con- 
ference, in  addition  to  providing  subjects  for  the  program  of 
the  Third  Conference,  specified  that  it  should  meet  on  or 
about  the  year  1915.  The  conference,  however,  did  not 
attempt  to  perpetuate  itself  by  declaring  that  conferences 
should  be  held  in  future  at  regular  and  recurring  intervals, 
but  limited  itself  to  a recommendation  for  a third  conference 
to  meet  at  a specified  date.  It  might  have  gone  further  and 
stated  that  the  periodic  assembling  of  a conference  com- 

A delegate  also  informed  me  that  in  talking  with  M.  de  Staal  the  latter 
declared  that  in  his  opinion  the  present  conference  is  only  the  first  of  a 
series,  and  that  it  is  quite  hkely  that  another  will  be  held  next  winter  or 
next  spring.  ” Autobiography  of  Andrew  D.  White,  Vol.  II,  p.  272. 


KECOMMENDATION  FOR  A THIRD  PEACE  CONFERENCE  735 


mended  itself  to  its  judgment;  but  as  the  conference  was  not 
a legislative  body,  and  if  it  had  been  could  not  have  bound  its 
successor,  much  less  the  sovereign  States  represented  at  the 
Conference,  it  wisely  restricted  itself  to  a recommendation  that 
a third  conference  should  be  held.  Public  opinion  in  the 
United  States  was  outspoken  for  a stated,  periodic  conference, 
and  the  American  delegation  was  instructed  by  the  Secretary 
of  State  to  favor  the  holding  of  further  conferences  within  fixed 
periods.* 

Pursuant  to  these  instructions  the  American  delegation 
succeeded,  by  means  of  great  tact  and  conciliation,  in  per- 
suading M.  de  Nelidow,  first  Russian  Delegate,  and  President 
of  the  Conference,  to  introduce  of  his  own  motion  the  following 
recommendation,  which  was  unanimously  adopted: 

Finally,  the  Conference  recommends  to  the  powers  the  assem- 
bly of  a third  peace  conference,  which  might  be  held  within 
a period  corresponding  to  that  which  has  elapsed  since  the 
preceding  conference,  at  a date  to  be  fixed  by  common  agree- 
ment between  the  Powers,  and  it  calls  their  attention  to 
the  necessity  of  preparing  the  program  of  this  Third  Conference 
a sufficient  time  in  advance  to  insure  its  deliberations  being 
conducted  with  the  necessary  authority  and  expedition. 

In  order  to  attain  this  object  the  Conference  considers  that 
it  would  be  very  desirable  that,  some  two  years  before  the 
probable  date  of  the  meeting,  a preparatory  committee  should 
be  charged  by  the  Governments  with  the  task  of  collecting  the 
various  proposals  to  be  submitted  to  the  Conference,  of  ascer- 
taining what  subjects  are  ripe  for  embodiment  in  an  interna- 
tional regulation,  and  of  preparing  a program  which  the  Govern- 
ments should  decide  upon  in  sufficient  time  to  enable  it  to  be 
carefully  examined  by  the  countries  interested.  This  com- 
mittee should  further  be  intrusted  with  the  task  of  proposing 
a system  of  organization  and  procedure  for  the  Conference 
itself. 

A careful  reading  of  the  recommendation  shows  that  the 
Conference  is  to  be  held  “within  a period  corresponding  to 
that  which  has  elapsed  since  the  preceding  Conference” — 
that  is  to  say,  within  a period  of  eight  years;  that  the  date 
is  to  be  fixed  “by  common  agreement  between  the  powers,” 


* See  Instructions,  Vol.  II,  pp.  184-185. 


736 


THE  HAGUE  PEACE  CONFERENCES 


and  that  the  program  of  this  Third  Conference  is  to  be  pre- 
pared “a  sufficient  time  in  advance  to  insure  its  deliberations 
being  conducted  with  the  necessary  authority  and  expedition.” 
The  powers  were  willing  to  recommend  a third  conference,  but 
they  were  not  willing  to  specify  the  exact  date.  They  felt 
it,  however,  to  be  essential  that  the  program  should  be  pre- 
pared in  advance  and  communicated  to  the  participants  in 
ample  time  to  enable  them  to  mature  their  views,  and  to  pre- 
sent them  in  finished  form  at  the  opening  of  the  Third  Confer- 
ence. Without  reflecting  upon  any  Power  or  group  of  Powers, 
the  Conference  felt  that  much  time  was  lost  by  a failure  to  pre- 
sent at  the  opening  the  various  projects  for  which  considera- 
tion was  requested,  and  that  the  delay  involved  in  communicat- 
ing with  the  home  governments  was  a waste  of  time  for  which 
there  was  neither  a reason  nor  a compensating  advantage. 

The  Second  Conference  felt  that  no  one  Power  should  be 
burdened  “with  the  task  of  collecting  the  various  proposals 
to  be  submitted  to  the  Conference,  of  ascertaining  what  sub- 
jects are  ripe  for  embodiment  in  an  international  regulation, 
and  of  preparing  a program”  which  should  include  the  pro- 
posals collected  and  ripe  for  submission.  For  this  purpose  a 
preparatory  committee  was  to  be  appointed  by  agreement  of 
the  various  Governments  “some  two  years  before  the  prob- 
able date  of  the  meeting”  in  the  behef  that  the  tentative 
program  might  be  examined,  approved,  disapproved,  or  modi- 
fied by  the  various  Powers  within  a period  of  two  years.  But 
a great  step  in  advance  was  taken  by  the  Conference  in  pro- 
viding that  “this  committee  should  further  be  intrusted  with 
the  task  of  providing  a system  of  organization  and  procedure 
for  the  Conference  itself,”  the  obvious  meaning  of  which  is 
that  the  committee  is  to  propose  a system  of  organization  and 
procedure  for  the  Conference  which  will  meet  the  approval  of 
the  invited  and  participating  Powers,  so  that  the  future  con- 
ferences will  be  no  longer  be  officered  and  dominated  by  any 
one  Power.  The  Conference  of  1899  was  due  to  the  enlight- 
ened statesmanship  of  Nicholas  II;  and  it  was  in  no  uncertain 
degree  his  conference,  for  the  First  Delegate  of  Russia  was 


RECOMMENDATION  FOR  A THIRD  PEACE  CONFERENCE  737 


president,  and  the  presidents  of  the  various  commissions  were 
chosen  directly  or  indirectly  by  Russia.  The  Second  Con- 
ference was  not  so  directly  the  work  of  the  Czar,  for  it  was, 
as  stated  in  the  very  first  lines  of  the  final  act,  “proposed  in 
the  first  instance  by  the  President  of  the  United  States  of 
America;”  but  the  President  of  the  Conference  was  the  First 
Delegate  of  Russia,  and  the  officers  of  the  Second,  like  the  oflfi- 
cers  of  the  First,  were  chosen  by  Russia  and  notified  to  the 
Second  Conference  for  approval.  The  Third  Conference  is, 
however,  to  have  its  “organization  and  procedure”  designated 
in  advance  by  a committee,  which  shall  represent  not  merely 
one  Power  but  the  Community  of  Nations.  The  Conference, 
therefore,  is  to  be  international  not  merely  in  name  but  in 
fact,  and  its  organization  and  procedure  are  to  be  the  result  of 
the  wit  and  wisdom  of  the  many,  not  of  an  individual  power, 
whether  it  be  the  august  initiator  of  the  Conference  itself  or 
of  the  individual  who  happens  to  propose  its  calling.  In 
becoming  an  institution  the  child  has  outgrown  tutelage. 

The  Conferences  at  The  Hague  have  already  accomplished 
much  for  international  law,  and  it  cannot  be  doubted  that  their 
successors  will  continue  the  work  which  they  have  so  admirably 
begun.  The  First  Conference  raised  good  offices  and  mediation 
to  the  dignity  of  an  institution;  provided  for  the  ascertainment 
of  disputed  facts  likely  to  produce  serious  consequences  by  an 
international  commission  of  inquiry;  set  the  seal  of  its  ap- 
proval upon  arbitration;  devised  machinery  by  which  a tem- 
porary tribunal  might  be  chosen  from  a permanent  panel  of 
judges,  and  adopted  a code  of  procedure  for  the  trial  and  deter- 
mination of  cases  submitted  to  the  tribunal.  The  First  Con- 
ference also  codified  the  laws  and  customs  of  warfare  on  land, 
extended  to  maritime  warfare  the  beneficent  provisions  of  the 
Geneva  Convention  and,  if  it  did  not  provide  for  the  limitation 
of  armaments,  it  at  least  discussed  seriously  and  profoundly 
the  question.  The  Second  Conference  revised  each  of  these 
conventions,  thus  rendering  them  more  worthy  of  approval; 
it  accepted  with  unanimity  the  principle  of  compulsory  arbi- 
tration and,  in  a concrete  case,  namely,  the  collection  of  con- 


738 


THE  HAGUE  PEACE  CONFERENCES 


tract  debts,  it  restricted  the  use  of  force  and  bound  the  nations 
to  arbitration.  It  laid  the  foundations  of  a Court  of  Arbitral 
Justice,  to  be  composed  of  judges  acting  under  a sense  of  judi- 
cial responsibility,  in  which  the  various  systems  of  jurispru- 
dence and  the  various  languages  shall  be  adequately  repre- 
sented; it  actually  created  an  International  Court  of  Prize  in 
which  the  validity  of  an  alleged  capture  shall  be  determined  by 
an  international  tribunal  composed  of  competent,  trained 
judges,  in  which  the  belhgerents  shall  be  represented,  but  in 
which  the  neutrals  shall  decide  the  question  at  issue.  The 
Conference  further  codified  the  laws  and  customs  of  war  and, 
by  prescribing  belligerent  duties  and  recognizing  neutral 
rights  as  well  as  duties,  extended  the  empire  of  law.  It  is 
impossible  to  discuss  international  law  without  a reference  to 
The  Hague  Conferences;  it  is  impossible  to  conduct  the  foreign 
relations  of  nations  without  quoting  the  provisions  of  The 
Hague  conventions;  it  is  almost  impossible  to  perform  the 
duties  of  citizenship  without  a knowledge  of  The  Hague  Con- 
ferences and  their  positive  results. 

The  positive  results  of  the  Conferences  are,  therefore,  of 
such  importance  that  they  mark  an  epoch  in  international  law 
and  its  development.  But  however  worthy  of  consideration, 
they  are  relatively  unimportant  in  comparison  with  the  insti- 
tution of  the  periodic  conference,  which  unites  for  a brief  space 
the  representatives  of  the  world  and  legislates,  although  ad 
referendum,  in  the  common  interest.  The  work  of  one  con- 
ference is  far  from  perfect,  and  each  of  the  three  conventions 
of  the  First  was  revised  in  the  light  of  theory  and  practice  by 
the  Second.  What  one  conference  makes  another  may  un- 
make, if  it  fails  to  justify  itself;  or  improve,  if  its  defects  have 
been  uncovered  by  practice  and  experience.  The  work  of 
the  Second  Conference  will  no  doubt  be  subjected  to  criticism 
and  forced  to  justify  itself;  a third  conference  will  undoubtedly 
revise  it  in  principle  as  well  as  in  detail.  The  experience  of 
the  many  will  supplement  the  wisdom  of  the  few,  and  the 
(cooperation  of  the  nations  will  produce  an  international  code 
fitted  to  meet  the  needs  of  the  nations  because  the  outcome  of 


RECOMMENDATION  FOR  A THIRD  PEACE  CONFERENCE  739 


their  needs  and  experience.  Each  conference  is  but  a step  in 
advance,  it  is  but  a link  in  the  chain  which,  encircling  the  world 
will  bind  the  nations  closer  together,  if  it  does  not  confederate 
them. 

In  this  view,  positive  results  are  of  minor  importance;  its 
partial  successes,  indeed  its  failures,  evidence  progress.  As 
aptly  said  by  our  Secretary  of  State,  Mr.  Root: 

The  question  about  each  international  conference  is  not 
merely  what  it  has  accomplished,  but  also  what  it  has  begun, 
and  what  it  has  moved  forward.  Not  only  the  conventions 
signed  and  ratified,  but  the  steps  taken  toward  conclusions 
which  may  not  reach  practical  and  effective  form  for  many 
years  to  come,  are  of  value.  Some  of  the  resolutions  adopted 
by  the  last  conference  do  not  seem  to  amount  to  very  much  by 
themselves,  but  each  one  marks  on  some  line  of  progress  the 
farthest  point  to  which  the  world  is  yet  willing  to  go.  They 
are  like  cable  ends  buoyed  in  mid-ocean,  to  be  picked  up  here- 
after by  some  other  steamer,  spliced,  and  continued  to  shore. 
The  greater  the  reform  proposed,  the  longer  must  be  the  proc- 
ess required  to  bring  many  nations  differing  widely  in  their 
laws,  customs,  traditions,  interests,  prejudices,  into  agreement. 
Each  necessary  step  in  the  process  is  as  useful  as  the  final 
act  which  crowns  the  work  and  is  received  with  public  cele- 
bration. ^ 

The  very  existence  of  the  Conference  is  a demonstration  of 
the  oneness  of  mankind,  of  the  superiority  of  general  to  spe- 
cial interests  and  local  policy,  and  the  successes  of  the  con- 
ferences show  the  possibility  of  harmonious  cooperation 
among  nationalities  differing  in  race,  institutions,  languages 
and  traditions.  The  First  Conference  showed  that  twenty- 
six  nations  could  work  harmoniously  for  the  common  good; 
the  Second  Conference  that  forty-four  States  could  labor  by 
means  of  their  representatives  in  peace  and  harmony  for  a 
period  of  four  months  and  produce  conventions  and  declara- 
tions, resolutions  and  voeux,  which  have  been  ratified  by 
national  legislatures  and  commend  themselves  to  enlightened 
public  opinion. 

The  usefulness  of  conferences  for  the  settlement  of  inter- 

^ Prefatory  note  to  Texts  of  the  Peace  Conferences  at  the  Hague,  pub- 
lished by  Ginn  & Company  (1908). 


740 


THE  HAGUE  PEACE  CONFERENCES 


national  affairs  was  proclaimed  by  theorists  and  writers  of 
authority,  and  has  been  demonstrated  by  the  practice  of  nations 
since  the  Treaty  of  Westphalia  of  1648.  The  expression  in 
favor  of  the  international  congress  is  contemporaneous  with 
the  birth  of  international  law;  for  in  a much  admired  and 
frequently  quoted  passage  of  the  immortal  Three  Books 
on  the  Law  of  War  and  Peace,  Grotius  says  that 

it  would  be  useful,  and  indeed  it  is  almost  necessary,  that  con- 
gresses of  Christian  Powers  should  be  held,  in  which  the  con- 
troversies which  arise  among  them  may  be  decided  by  others 
who  are  not  interested,  and  in  which  measures  may  be  taken 
to  compel  the  parties  to  accept  Peace  on  equitable  terms. ^ 

The  context  shows  that  Grotius  had  in  mind  the  settlement 
of  controversies  by  arbitration  and  the  conclusion  of  peace  by 
international  congresses.  He  did  not  have  in  mind  a union  or 
federation  of  the  States,  although,  by  imposing  peace  upon 
disputants  by  disinterested  parties,  he  recognized  the  family 
of  nations  and  its  interests  as  superior  to  any  member  and  its 
special  interests.  The  use  of  force  to  compel  members  to 
accept  the  decision  of  disinterested  powers  presupposes  a 
recognition  of  the  solidarity  of  nations. 

Grotius  published  his  treatise  in  1625,  and  the  numerous 
conferences  which  have  been  held  in  the  two  centuries  and  a 
half  preceding  the  First  Hague  Conference  are  in  no  small 
degree  due  to  his  influence.^  In  placing  the  wreath  upon  the 
tomb  of  Grotius  at  Delft  on  the  Fourth  of  July,  1899,  Dr. 
Andrew  D.  White,  on  behalf  of  the  American  Delegation,  said: 

My  Honored  Colleagues  of  the  Peace  Conference,  the  germ 
of  this  work  in  which  we  are  all  so  earnestly  engaged,  lies  in  a 
single  sentence  of  Grotius’s  great  book.  Others  indeed  had 

* De  Jure  Belli  ac  Pacis,  Liber,  ii,  cap.  xxiii,  § viii-4. 

^More  than  ever  it  is  clear  to  me  that  of  all  books  ever  written — not 
claiming  divine  inspiration — the  great  work  of  Grotius  on  War  and 
Peace  has  been  of  most  benefit  to  mankind.  Our  work  here,  at  the  end  of 
the  nineteenth  century,  is  the  direct  result  of  his,  at  the  beginning  of  the 
seventeenth. — Dr.  White’s  Autobiography,  Vol.  II,  p.  274. 

In  a later  passage.  Dr.  White  speaks  of  Grotius  as  “ the  man  who  set  in 
motion  the  ideas  which,  nearly  three  hundred  years  later,  have  led  to  the 
assembling  of  this  Conference. — Ibid.,  p.  291. 


RECOMMENDATION  FOR  A THIRD  PEACE  CONFERENCE  741 


proposed  plans  for  the  peaceful  settlement  of  differences  be- 
tween nations,  and  the  world  remembers  them  with  honor: 
to  all  of  them,  from  Henry  IV  and  Kant  and  St.  Pierre  and 
Penn  and  Bentham,  down  to  the  humblest  writer  in  favor  of 
peace,  we  may  well  feel  grateful;  but  the  germ  of  arbitration 
was  planted  in  modern  thought  when  Grotius,  urging  arbitration 
and  mediation  as  preventing  war,  wrote  these  solemn  words 
in  the  De  Jure  Belli  ac  Pacis:  ''maxime  autem  christiani  reges 
et  civitates  tenentur  hanc  inire  viam  ad  arma  vitanda. 

It  is  suggested  that  Grotius  may  have  seen  a little  book, 
written  by  Emeric  Cruc6  and  published  in  1623,  entitled  Le 
Nouveau  Cynee,  in  which  the  proposal  was  made  for  a union  of 
the  nations  and  the  establishment  at  Venice  of  an  assembly 
in  which  all  international  controversies  should  be  decided.* 
This  remarkable  treatise  dropped  out  of  sight  and,  although 
known  to  our  Charles  Sumner,*  it  has  but  recently  been  brought 
to  the  attention  of  students  by  the  distinguished  Belgian 
publicist,  Ernest  Nys.  The  work  deserves  well  of  the  friends 
of  peace  and  arbitration,  and  it  is  to  be  hoped  that  it  may  be 
reprinted  and  translated  into  English. 

But  to  revert  to  Grotius.  If  known  to  him,  there  is  no 
trace  of  its  influence,  because  Grotius  does  not  speak  of  a union 
of  the  nations,  whereas  Cruce  proposes  a universal  union  and 
stated  in  detail  the  means  by  which  it  might  be  effected. 

Two  famous  projects  based  upon  federation  of  the  nations 
are  known  respectively  as  the  Great  Design  of  Henry  IV,  and 
the  Perpetual  Peace  of  the  Abbe  de  Saint-Pierre. 

The  plan  of  Henry  IV,  or  of  his  minister,  Sully,  for  it  is 
from  the  latter  that  we  derive  our  knowledge  of  the  project, 
contemplated  the  formation  of  a “very  Christian  republic” 
to  consist  of  fifteen  sovereignties,  each  one  of  which  was  to 
send  delegates  to  a general  council,  empowered  to  decide  all 
disputes  which  might  arise  between  the  members  of  the 

^ Holls’  Peace  Conference,  Appendix  III,  pp.  549-550. 

^See,  Nys:  ifitudes  de  droit  international  et  de  droit  politique  (1890),  pp. 
308-317;  Balch’s  Em6ric  Cruc6  (1900),  pp.  1-63;  Darby’s  International 
Tribunals  (4th  ed.,  1904),  pp.  22-33. 

^The  War  System  of  the  Commonwealth  of  Nations,  Mead’s  ed.  of  Sum- 
ner’s Addresses  on  War  (1904),  p.  196,  n.  2.  Sumner’s  copy  is  now  in  the 
Harvard  College  Library. 


742 


THE  HAGUE  PEACE  CONFEKENCES 


republic,  and  to  fix  the  contribution  which  each  member 
should  make  towards  the  maintenance  of  the  army  and  navy 
of  the  confederation.^ 

This  project,  which  has  profoundly  influenced  modern 
thought,  was  a dream  of  war  conquest  as  well  as  peace,  because 
its  realization  presupposed  war  with  Austria.  In  a letter  to 
Henry,  referring  to  the  project.  Sully  says  that  it  would  be 
necessary 

first  to  reduce  the  whole  House  of  Austria  to  a dominion  so  well 
adjusted  and  composed  in  such  due  proportion  that  it  would 
deliver  all  the  Christian  States  and  dominions  from  the  fears 
and  apprehension  that  it  has  always  given  them  cause  to  cher- 
ish, of  being  oppressed  and  enclosed  by  it;  and,  secondly,  that 
all  those  belonging  to  that  House  should  be  induced  by  adequate 
reasons  to  forsake  their  former  extortionate  covetousness,  so 
that  they  may  no  longer  plan  injuries  to  any  one — a state  of 
mind  to  which  it  seems  impossible  to  bring  them  so  long  as  they 
possess  a number  of  States  and  kingdoms  beyond  those  included 
in  their  Spanish  dominions. ^ 

The  good  Abb6  de  Saint-Pierre,  invoking  the  authority  of 
Henry  IV  for  his  Project  of  Perpetual  Peace  (published  in 
1713,  1729),  sought  to  perpetuate  the  settlement  effected  by 
the  Treaty  of  Utrecht  and  to  adjust  controversies  between 
nations  by  pacific  means. 

For  this  purpose,  to  quote  the  summary  of  our  own 
Wheaton,  the  first  article  of  the  projet  proposed  to  establish 
a perpetual  alliance  between  the  members  of  the  European 
League,  or  Christian  republic,  for  their  mutual  security  against 
both  foreign  and  civil  war,  and  for  the  mutual  guarantee  of 
their  respective  possessions  and  of  the  treaties  of  peace  con- 
cluded at  Utrecht. 

The  second  article  proposed  that  each  ally  should  contribute 
to  the  common  expenses  of  the  grand  alliance  a monthly  con- 
tribution to  be  regulated  by  the  general  assembly  of  their  pleni- 
potentiaries. 

The  third  article  provided  that  the  allies  should  renounce  the 
right  of  making  war  against  each  other,  and  accept  the  media- 
tion and  arbitration  of  the  general  assembly  of  the  league  for 

'For details  of  the  Great  Design,  see  Darby’s  International  Tribunals, 

pp.  16-21. 

•Darby’s  International  Tribunals,  pp.  20-21. 


RECOMMENDATION  FOR  A THIRD  PEACE  CONFERENCE  743 


the  termination  of  their  mutual  differences,  three-fourths  of 
the  votes  being  necessary  for  a definitive  judgment. 

The  principal  sovereigns  and  States  who  were  to  compose 
the  league  were  arranged  in  the  following  order: 

1.  The  King  of  France. 

2.  The  Emperor  of  Germany. 

3.  The  King  of  Spain. 

4.  The  Emperor  or  Empress  of  Russia. 

5.  The  King  of  Great  Britain,  Elector  of  Hanover. 

6.  The  Republic  of  Holland. 

7.  The  King  of  Denmark. 

8.  The  King  of  Sweden. 

9.  The  King  of  Poland,  Elector  of  Saxony. 

10.  The  King  of  Portugal. 

11.  The  Sovereign  of  Rome. 

12.  The  King  of  Prussia,  Elector  of  Brandenburg. 

13.  The  Elector  of  Bavaria  and  his  co-states. 

14.  The  Elector  of  Palatine  and  his  co-states. 

15.  The  Swiss  and  their  co-states. 

16.  The  Ecclesiastical  Electors  and  their  co-states. 

17.  The  Republic  of  Venice  and  its  co-states. 

18.  The  King  of  Naples. 

19.  The  King  of  Sardinia. 

Each  of  these  nineteen  Powers  was  to  have  a single  vote 
in  the  European  diet,  and  the  smaller  republics  and  princes  to 
be  associated  in  the  league,  with  the  right  of  giving  a single 
collective  vote  as  in  assembly  of  the  present  Germanic  con- 
federation. “Comme  le  Grand  Due  de  Toscane  peut  faire 
pr6sentement  une  voix  de  plus,  il  sera  facile  de  le  nommer 
comme  la  vingti^me  puissance,  mais  toutes  ces  petites  diffi- 
cultes  peuvent  facilement  se  r^gler  par  provision  k la  plurality 
voix.”^ 

The  fourth  article  stipulated  that  if  any  one  of  the  allied 
powers  should  refuse  to  carry  into  effect  the  judgments  and 
regulations  of  the  grand  alliance,  or  negotiate  treaties  in  con- 
travention thereof,  or  prepare  to  wage  war,  the  alliance  should 
arm  and  act  offensively  against  the  offending  Power  until  it 
was  reduced  to  obedience. 

The  fifth  article  declared  that  the  general  assembly  of 
plenipotentiaries  of  the  alliance  should  have  power  to  enact  by 
a plurality  of  votes,  all  laws  necessary  and  proper  to  carry  into 
effect  the  objects  of  the  alliance;  but  no  alteration  in  the 
fundamental  articles  to  be  made  without  the  unanimous  con- 
sent of  the  allies. 

The  almost  verbal  coincidence  of  these  articles  with  those 
of  the  fundamental  act  of  the  Germanic  confederation  estab- 

*Abr4g.  du  Projet  de  Paix  perpetuelle,  tom.  i.  p.  349,  edit,  de  Rotterdam, 
1738. 


744 


THE  HAGUE  PEACE  CONFERENCES 


lished  by  the  Congress  of  Vienna  in  1815  is  remarkable.  Fleury, 
to  whom  Saint-Pierre  communicated  his  plan,  replied  to  him: 
'‘Vous  avez  oublie  un  article  essential,  celui  d’envoyer  des 
missionnai  res  pour  toucher  les  coeurs  des  princes  el  leur  persuader 
d’entrer  dans  vos  vues.”  But  Dubois  bestowed  upon  him 
the  highest  praise,  expressed  in  the  most  felicitous  manner 
when  he  termed  his  ideas:  “les  reves  d’un  homme  de  bien.” 

The  Great  Design  of  Henry  IV  and  Saint-Pierre’s  Perpetual 
Peace  sanctioned  the  use  of  force : the  first  to  bring  about  the 
confederation;  the  second  to  maintain  it.  The  Quaker  Penn 
was  also  not  averse  to  the  use  of  force  to  keep  the  peace;  but, 
as  is  to  be  expected,  his  European  Diet,  Parliament,  or  Estates 
was  to  be  an  instrument  for  the  settlement  of  international 
disputes  by  the  rules  of  justice.  It  was  wholly  nonpolitical  as 
he  neither  sought  the  humiliation  of  Austria  or  of  France  nor 
the  aggrandizement  of  England. 

For  the  love  of  Peace  and  Order,  the  sovereign  princes  of 
Europe  were  “to  agree  to  meet”  by  their  stated  deputies,  in 
a General  Diet,  Estate,  or  Parliament,  and  there  establish 
rules  of  justice  for  Sovereign  Princes  to  observe  one  to  another. 
The  Diet  was  to  meet  yearly,  or  “once  in  two  or  three  years 
at  farthest,  as  they  shall  see  cause ;”  representation  was  to  be 
proportionate  and  the  number  of  persons  or  votes  was  to  be 
reached  “by  considering  the  revenues  of  lands,  the  exports 
and  entries  at  the  Custom  Houses,  the  book  or  rates,  and 
surveys  that  are  in  all  governments : to  proportion  taxes  for 
their  support.” 

The  Assembly  was  to  be  a judicial  body,  and  before  it 

should  be  brought  all  differences  depending  between  one  Sover- 
eign and  another,  that  cannot  be  made  up  by  private  Embassies 
before  the  Sessions  begin. 

In  case  of  refusal  to  obey  the  judgment  of  the  Diet, 

all  the  other  Sovereignties,  United  as  One  Strength,  shall  compel 
the  Submission  and  Performance  of  the  Sentence,  with  Damages 
to  the  Suffering  Party,  and  Charges  to  the  Sovereignties  that 
obliged  their  Submission.^ 

‘ Wheaton’s  History  of  the  Modem  Law  of  Nations,  pp.  262-264.  For 
Rousseau’s  interesting  Projet  de  Paix  Perpetuelle  based  upon  Saint- 
Pierre’s,  see  Darby’s  International  Tribunals,  pp.  104-121;  Wheaton’s 
History  of  the  Modern  Law  of  Nations,  pp.  264-268. 


RECOMMENDATION  FOR  A THIRD  PEACE  CONFERENCE  745 


At  the  close  of  the  eighteenth  century  two  great  thinkers, 
the  one  a jurist  (Bentham),  the  other  a philosopher  (Kant), 
devoted  themselves  seriously  to  devise  means  whereby  the 
scourge  of  war  might  be  avoided. 

In  a plan  for  an  Universal  and  Perpetual  Peace,  written  in 
1789,  but  not  published  until  1841,  Bentham  stated  his  purpose 
in  a single  paragraph: 

The  following  plan  has  for  its  basis  two  fundamental  proposi- 
tions: (1)  The  reduction  and  fixation  of  the  force  of  the  several 
nations  that  compose  the  European  System;  (2)  The  emanci- 
pation of  the  distant  dependencies  of  each  State.  Each  of 
these  propositions  has  its  distinct  advantages;  but  neither  of 
them,  it  will  appear,  would  completely  answer  the  purpose 
without  the  other.^ 

Bentham  did  not  propose  a union  or  league  of  States  but  an 
agreement  to  send  two  deputies  to  a congress  or  diet  which 
should  sit  as  a court  of  justice  for  the  judicial  settlement  of 
international  disputes. 

The  proceedings  of  such  congress  or  diet  should  be  all 
public. 

Its  power  would  consist,  1.  In  reporting  its  opinion. 

2.  In  causing  the  opinion  to  be  circulated  in  the  dominions 
of  each  State. 

He  felt  that  public  opinion  would  enforce  obedience.  In 
case  of  non-compliance,  the  refactory  State  might  be  put 

under  the  ban  of  Europe.  There  might,  perhaps,  be  no  harm  in 
regulating  as  a last  resource,  the  contingent  to  be  furnished 
by  the  several  States  for  enforcing  the  decrees  of  the  court.” 

The  use  of  force  would  be  in  all  human  probability 

unnecessary,  if  in  the  instrument  constituting  the  court,  the 
freedom  of  the  press  were  guaranteed,  so  that  the  decrees  of 
the  court  might  be  given  the  most  extensive  and  unlimited  cir- 
culation. 

While  the  essence  of  Bentham’s  project  consists  in  the 
establishment  of  an  International  Court,  Kant  proposed  a 

* Penn’s  Essay  Towards  the  Present  and  Future  Peace  of  Europe  (1693- 
1694),  published  by  the  American  Peace  Society  (Boston,  1897). 

^ Bentham’s  Works,  edited  by  Bowring,  Vol.  II,  p.  546.  For  an  admirable 
summary  and  exposition  of  Bentham’s  plan,  see  Wheaton’s  History  of  the 
Modem  Law  of  Nations,  pp.  328-344. 


746 


THE  HAGUE  PEACE  CONFERENCES 


Confederation  of  States  in  order  to  create  and  maintain 
peace  and  only  incidentally  mentions  the  judicial  settlement 
of  controversies. 

Wheaton  thus  analyzes  and  summarizes  Kant’s  Perpetual 
peace : 

One  of  the  most  remarkable  of  these  projects  of  perpetual 
peace  was  that  published  by  Kant  in  1795,  soon  after  the  con- 
clusion of  the  treaty  of  peace  at  Basle  by  which  Prussia  retired 
from  the  continental  coalition  against  the  French  republic, 
and  guaranteed  the  neutrality  of  the  other  States  of  northern 
Germany.  The  scheme  proposed  by  the  philosopher  of  Koenigs- 
berg  was  grounded  on  the  same  idea  of  a general  confederation 
of  European  nations  which  had  been  successively  conceived  by 
Saint  Pierre,  Rousseau  and  Bentham. 

Kant  develops  this  idea  by  laying  down  as  the  first  con- 
dition of  perpetual  peace  that  the  constitution  of  every  State 
adhering  to  the  proposed  league  should  be  republican,  which 
he  defines  to  be  that  form  of  government  where  every  citizen 
participates  by  his  representatives  in  the  exercise  of  the  legis- 
lative power,  and  especially  in  that  of  deciding  on  the  ques- 
tions of  peace  and  war.  A declaration  of  war  decreed  in  this 
manner  by  the  nation  is  in  effect  decreeing  against  itself  all  the 
calamities  and  burdens  of  war.  On  the  other  hand,  under  a 
constitution  of  government  where  the  subjects  are  not  citizens, 
that  is  under  a constitution  which  is  not  republican,  a declara- 
tion of  war  may  be  rashly  pronounced  on  insufficient  grounds, 
because  it  costs  nothing  to  the  national  chief,  who  is  the  master, 
and  not  a member  of  the  State — not  even  the  sacrifice  of  his 
smallest  pleasures.  But,  according  to  Kant,  a republican 
form  must  not  be  confounded  with  a democratic  form  of  govern- 
ment. By  a republican  constitution,  he  understands  any  form 
of  government  limited  by  a popular  representation,  the  legisla- 
tive power  being  separated  from  the  executive,  and  the  authority 
to  declare  war  being  included  in  the  former.  According  to 
his  view,  democracy  excludes  representation.  It  is  inevitably 
despotic,  the  will  of  a majority  of  the  sovereigns  of  which  it  is 
composed  being  unlimited;  whilst  aristocracy,  or  even  autoc- 
racy, although  defective  inasmuch  as  they  are  liable  to  become 
despotic  by  substituting  the  single  will  of  the  chief  or  chiefs 
of  the  State  to  the  general  will,  still  admit  the  possibility  of  a 
representative  administration,  as  Frederick  the  Great  intimated 
when  he  said  he  was  “the  first  servant  of  the  state.”  Not  one 
of  the  pretended  republics  of  antiquity  possessed,  or  even  had 
a knowledge  of  the  representative  system.  They  accordingly 
terminated  in  the  least  insupportable  form  of  despotism,  that 
of  a single  individual. 


RECOMMENDATION  FOR  A THIRD  PEACE  CONFERENCE  747 


The  second  condition  of  a perpetual  peace,  according  to  Kant, 
is  that  the  public  law  of  Europe  should  be  founded  upon  a 
confederation  of  free  States.  In  the  existing  system  of  inter- 
national relations,  the  state  of  nature,  which  has  ceased  as 
between  individuals,  whilst  it  still  subsists  as  between  nations, 
is  not  a state  of  peace,  but  of  war,  if  not  flagrant,  at  least  always 
ready  to  break  out.  The  code  expounded  by  public  jurists  to 
nations  has  never  had  the  obligatory  force  of  law,  properly  so 
called,  for  want  of  an  adequate  coercive  sanction.  The  field 
of  battle  is  the  only  tribunal  where  States  plead  for  their  rights ; 
but  victory,  which  ends  the  litigation,  does  not  Anally  decide 
the  controversy.  The  treaty  of  peace  which  may  follow  is,  in 
effect,  a mere  suspension  of  arms,  the  contending  parties  still 
remaining  in  a state  of  hostility  towards  each  other,  without 
being  subject  to  the  reproach  of  injustice,  since  each  party  is 
the  exclusive  judge  in  its  own  cause.  The  state  of  peace, 
must,  consequently,  ever  remain  insecure,  unless  guaranteed 
by  a special  compact  having  for  its  object  the  perpetual  abolition 
of  war.  Nations  must  renounce  as  individuals  have  renounced, 
the  anarchical  freedom  of  savages,  and  submit  themselves  to 
coercive  laws,  thus  forming  a Community  of  Nations,  civitas 
gentium,  which  may  ultimately  be  extended  so  as  to  include 
all  the  people  of  the  earth.  “It  may  be  demonstrated,”  says 
our  author,  “that  the  idea  of  a confederation  which  shall 
gradually  extend  to  all  States,  and  thus  lead  them  insensibly 
to  universal  and  perpetual  peace,  is  not  an  impracticable  or 
visionary  idea.  It  may  be  realized,  if  happily  a single  nation, 
equally  powerful  and  enlightened,  could  once  constitute  itself 
as  a republic,  a form  of  government  naturally  inclined  to  per- 
petual peace.  A common  center  would  thus  be  created  for 
this  federative  association,  around  which  other  States  would 
cluster  in  order  to  secure  their  liberties  according  to  the  prin- 
ciples of  public  law,  and  this  alliance  would  finally  become  uni- 
versal. ” 

He  concludes  that  “if  it  be  a duty  to  cherish  the  hope  that 
the  universal  dominion  of  public  law  may  ultimately  be  real- 
ized, by  a gradual  but  continued  progress,  the  establishment 
of  perpetual  peace  to  take  the  place  of  those  mere  suspensions 
of  hostility  called  treaties  of  peace,  is  not  a mere  chimera,  but 
a problem,  of  which  time,  abridged  by  the  uniform  and  con- 
tinual progress  of  the  human  mind,  will  ultimately  furnish 
a satisfactory  solution.”^ 

In  his  metaphysics  of  jurisprudence  published  in  1797,  treat- 
ing of  the  science  of  international  law  in  general,  Kant  insists 

'Projet  de  paix  perpetuelle,  essai  philosophique  par  Emanuel  Kant. 
Traduit  de  I’allemand  avec  un  Nouveau  Supplement  de  I’auteur,  Koenigs- 
berg,  1796. 


748 


THE  HAGUE  PEACE  CONFERENCES 


upon  the  same  views  as  to  the  practicability  of  a perpetual 
peace.  In  this  work  he  observes,  “that  the  natural  state  of 
nations,  being  like  that  of  individuals,  a State  which  must  be 
abandoned  in  order  to  enter  into  a social  state  sanctioned  by 
law,  every  right  acquired  by  war  previous  to  this  transition 
must  be  considered  as  provisional  merely,  until  confirmed  by 
a general  union  of  independent  States,  analogous  to  that  asso- 
ciation of  individuals  which  forms  each  separate  State.  The 
establishment  of  perpetual  peace,  which  ought  to  be  considered 
as  the  ultimate  object  of  every  system  of  public  law,  may  per- 
haps be  considered  as  impracticable,  inasmuch  as  the  too  great 
extension  of  such  a federal  union  might  render  impossible  that 
supervision  over  its  several  members  and  that  protection  to 
each  member  which  is  essential  to  its  ends.  But  the  establish- 
ment of  those  principles  which  tend  to  further  this  object,  by 
forming  such  alliances  between  different  States  as  may  grad- 
ually lead  to  its  accomplishment,  is  by  no  means  an  impractic- 
able idea,  since  it  is  grounded  upon  the  rights  and  the  duties 
of  men  and  of  States. 

“Such  a general  association  of  States,  having  for  its  object 
the  preservation  of  peace,  might  be  termed  the  Permanent 
Congress  of  Nations.  Such  was  the  diplomatic  conference 
formed  at  The  Hague  during  the  first  part  of  the  eighteenth 
century,  with  a similar  view  consisting  of  the  ministers  of  the 
greater  part  of  the  European  courts  and  even  of  the  smallest 
republics.  In  this  manner  all  Europe  was  constituted  into  one 
federal  state,  of  which  the  several  members  submitted  their 
differences  to  the  decision  of  this  conference  as  their  sovereign 
arbiter.  Since  that  epoch  the  law  of  nations  may  be  said  to 
have  remained  in  the  books  of  the  public  jurists  a dead  letter 
without  practical  influence  on  the  actual  conduct  of  govern- 
ments, or  else  has  been  invoked  when  too  late  to  correct  the 
irreparable  evils  inflicted  by  the  abuse  of  force. 

“What  we  mean  to  propose  is  a General  Congress  of  Nations 
of  which  both  the  meeting  and  the  duration  are  to  depend 
entirely  on  the  sovereign  wills  of  the  several  members  of  the 
league,  and  not  an  indissoluble  union  like  that  which  exists 
between  the  several  States  of  North  America  founded  on  a 
municipal  constitution.  Such  a congress  and  such  a league 
are  the  only  means  of  realizing  the  idea  of  a true  public  law, 
according  to  which  the  differences  between  nations  would 
be  determined  by  civil  proceedings  as  those  between  individuals 
are  determined  by  civil  judicature,  instead  of  resorting  to  war, 
means  of  redress  worthy  of  barbarians.”* 

* Wheaton’s  History  of  the  Modern  Law  of  Nations,  pp.  750-734.  For 
the  full  text,  see  Hastie’s  translation  of  Kant’s  Principles  of  Politics,  pp.  77- 
148;  Dr.  Trueblood’s  translation  pubhshed  by  the  American  Peace  Society 
(Boston,  1897). 


RECOMMENDATION  FOR  A THIRD  PEACE  CONFERENCE  749 


The  various  plans  of  Henry  IV,  Em^ric  Cruce,  Saint-Pierre 
and  Rousseau’s  project  based  upon  it,  the  Diet  of  William 
Penn,  and  the  Essays  of  Bentham  and  Kant  may  be  called 
the  classic  projects  for  the  establishment  of  an  International 
Congress  as  a means  of  maintaining  peace  among  the  nations. 

It  will  be  noted  that  the  English  plans  are  judicial,  as 
becomes  the  Anglo-Saxon,  who  has  made  the  judicial  settle- 
ment of  international  controversies  a confession  of  faith. 
Penn’s  plan  is  for  a reunion  of  a diet  or  parliament  of  negotia- 
tors; Bentham’s  plan  is  for  a court  composed  of  two  members 
from  each  party  to  its  establishment.  The  European  plans 
are  political;  Henry’s  is  based  upon  the  humiliation  of  Aus- 
tria; Saint-Pierre  assumes  the  primacy  of  France.  Kant’s  is 
political  in  the  sense  that  it  presupposes  a change  in  the  inter- 
nal organization  of  nations  whereby  their  governments  become 
republican,  that  is,  constitutional  and  representative.  The 
acceptance  of  Kant’s  plan  would,  however,  be  in  the  common 
interest  and  would  not  inure  to  the  advantage  of  any  nation. 

The  projects  of  the  nineteenth  century  are  not  only  of 
importance  in  themselves,  but  show  that  the  desire  for  a closer 
and  intimate  relation  of  the  nations  is  not  a dream  of  the  past, 
nor  an  idle  speculation  of  the  present,  but  a hope  for  the 
future. 

Of  the  many  plans,  three  are  of  especial  significance,  and  show 
how  the  national  institutions  influence  each  author  who  seeks 
to  create  international  institutions.  William  Ladd’s  Con- 
gress of  Nations,  published  in  1840,  suggesting  a Diplomatic 
Congress  for  the  codification  of  International  law,  and  a sepa- 
rate and  distinct  Court  of  Nations  for  its  administration,  bears 
unmistakable  evidence  of  American  authorship.^ 

James  Lorimer’s  scheme  for  the  organization  of  an  Inter- 
national Government  with  its  seat  at  Geneva  betrays  the 
Briton,*  and  Bluntschli’s  Organization  of  a European  Federa- 


‘ Darby’s  International  Tribunals,  pp.  409-413. 

’Lorimer’s  Institutes  of  the  Law  of  Nations,  Vol.  II, pp.  240—278;  279- 
287. 


750 


THE  HAGUE  PEACE  CONFERENCES 


tion  (1878)^  is  based  upon  the  experience  of  Germany 
with  special  reference  to  the  federation  of  Germany  into  an 
Empire. 

That  The  Hague  Conferences  have  brought  nations  together 
as  never  before  is  patent  to  the  casual  observer;  that  the 
periodic  meeting  of  the  Conference  will  bring  them  into  still 
closer  relations  is  equally  evident ; but  it  is  a matter  of  doubt 
and  of  no  little  difficulty  to  predict  whether  the  International 
Conference  will  remain  a diplomatic  assembly,  or  will  result 
in  a federation  of  Independent,  Sovereign  and  Equal  States. 

It  may  be  that  federation  is  a dream.  Our  own  experience 
in  the  Constitutional  Convention  of  1787  shows  with  what 
difficulty  States  of  a common  origin,  with  common  history, 
institutions  and  traditions,  speaking  the  same  language,  can 
be  persuaded,  even  for  a common  purpose,  to  lay  aside  their 
individual  sovereignty  and  unite  in  a definite  and  permanent 
union  for  the  common  good.  The  difficulty  would  be  im- 
measurably greater  to  unite  independent  and  sovereign  nations 
into  a federation,  however  loose,  when  their  traditions  and 
institutions  are  at  variance,  when  their  languages  and  litera- 
tures are  instinct  with  nationality,  their  ambitions  so  diver- 
gent and  irreconcilable,  and  when  the  sacrifice  is  so  evident 
and  the  benefits  so  problematical  or  undemonstrated. 

The  form  is  nothing;  the  substance  is  everything,  and  the 
uniformity  produced  by  international  conference  and  decision 
differs  so  little  from  the  uniformity  resulting  from  a federation 
as  to  be  negligible.  An  international  conference  meeting  at 
regular  stated  intervals,  in  which  nations  large  and  small 
meet  on  a plane  of  equality  to  discuss  questions  of  universal 
importance  and  to  legislate  ad  referendum,  offers  the  advan- 
tages of  federation  without  its  disadvantages.  Public  opinion 
determines  the  destiny  of  a nation;  international  opinion, 
stronger  than  any  combination  of  nations,  draws  the  world 
more  closely  together  than  a mere  political  imion.  The 

‘Bluntschli’s  Gesammelte  Kleine  Schriften  (1881),  Vol.  II,  pp.  279-312; 
Darby’s  International  Tribunals,  pp.  194-213. 


EECOMMENDATION  FOR  A THIRD  PEACE  CONFERENCE  751 


federation  of  the  world  may  come,  if  public  opinion  insists  that 
the  world  be  federated ; but,  as  a federation  involves  the  organ- 
ization of  an  executive,  and  as  the  question  of  an  executive  is 
beset  with  manifold  difficulties,  it  seems  improbable  to  expect 
it,  even  if  desirable,  within  a conceivable  future. 

It  may  well  be  that  the  preparatory  committee  mentioned 
by  the  recommendation  for  a Third  Conference,  “ charged  by 
the  Governments  with  the  task  of  collecting  the  various  pro- 
posals to  be  submitted  to  the  Conference,  of  ascertaining  what 
subjects  are  ripe  for  embodiment  in  an  international  regula- 
tion,” will  develop  into  a standing  committee  entrusted  with 
international  interests  between  the  various  conferences.  Es- 
pecially would  this  be  so  if  the  committee  were  appointed  by 
the  Conference,  instead  of  being  selected  by  agreement  of  the 
Powers  sometime  before  the  calling  of  the  future  Conference. 
It  would  not  be  an  executive ; it  would  not  be  a Government ; 
it  would,  however,  as  a committee,  represent  international 
interests  during  the  periods  between  the  Conferences. 

If  the  tentative  provision  of  a preparatory  committee  for 
the  Third  Conference  commends  itself  to  enlightened  opinion, 
and  if  it  prove  itself  worthy  of  confidence,  it  may  be  the 
germ  of  an  international  executive,  or  the  functions  of  the 
Permanent  Administrative  Council,  or  the  International  Bu- 
reau may  be  enlarged  so  as  to  watch  over,  if  not  control,  the 
international  relations  of  the  Signatory  Powers.  It  may  also 
be  that  the  Permanent  Court  may  be  developed  into  an  inter- 
national and  permanent  judiciary.  The  establishment  of  the 
Court  of  Prize  shows  that  the  Powers  are  not  averse  to  a 
permanent  international  tribunal  if  only  its  need  be  demon- 
strated. It  seems,  therefore,  that  the  foundations  are  laid  for 
an  international  organization.  It  depends  on  public  opinion 
to  rear  the  structure. 


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APPENDIX 


APPENDIX  TO  CHAPTER  I 


MR.  BLAINE  TO  MR.  OSBORN  PROPOSING  THE  FIRST 
PAN-AMERICAN  CONFERENCE 

Department  of  State, 
Washington,  November  29,  1881. 

Sir:  The  attitude  of  the  United  States  with  respect  to  the 
question  of  general  peace  on  the  American  continent  is  well 
known  through  its  persistent  efforts  for  years  past  to  avert  the 
evils  of  warfare,  or,  these  efforts  faihng,  to  bring  positive  con- 
flicts to  an  end  through  pacific  counsels  or  the  advocacy  of 
impartial  arbitration. 

This  attitude  has  been  consistently  maintained,  and  always 
with  such  fairness  as  to  leave  no  room  for  imputing  to  our 
government  any  motive  except  the  humane  and  disinterested 
one  of  saving  the  kindred  States  of  the  American  continent 
from  the  burdens  of  war.  The  position  of  the  United  States  as 
the  leading  power  of  the  new  world  might  well  give  to  its 
government  a claim  to  authoritative  utterance  for  the  purpose 
of  quieting  discord  among  its  neighbors,  with  all  of  whom  the 
most  friendly  relations  exist.  Nevertheless,  the  good  offices 
of  this  government  are  not  and  have  not  at  any  time  been 
tendered  with  a show  of  dictation  or  compulsion,  but  only  as 
exhibiting  the  solicitous  goodwill  of  a common  friend. 

For  some  years  past  a growing  disposition  has  been  mani- 
fested by  certain  States  of  Central  and  South  America  to  refer 
disputes  affecting  grave  questions  of  international  relationship 
and  boundaries  to  arbitration  rather  than  to  the  sword.  It 
has  been  on  several  such  occasions  a source  of  profound  satis- 
faction to  the  government  of  the  United  States  to  see  that  this 
country  is  in  a large  measure  looked  to  by  all  the  American 
powers  as  their  friend  and  mediator.  The  just  and  impartial 
counsel  of  the  President  in  such  cases  has  never  been  withheld. 


753 


754 


APPENDIX 


and  his  efforts  have  been  rewarded  by  the  prevention  of  san- 
guinary strife  or  angry  contentions  between  peoples  whom  we 
regard  as  brethren. 

The  existence  of  this  growing  tendency  convinces  the  Presi- 
dent that  the  time  is  ripe  for  a proposal  that  shall  enlist  the 
goodwill  and  active  cooperation  of  all  the  States  of  the  western 
hemisphere,  both  north  and  south,  in  the  interest  of  humanity 
and  for  the  common  weal  of  nations.  He  conceives  that  none 
of  the  Governments  of  America  can  be  less  alive  than  our  own 
to  the  dangers  and  horrors  of  a state  of  war,  and  especially  of 
war  between  kinsmen.  He  is  sure  that  none  of  the  chiefs  of 
Governments  on  the  continent  can  be  less  sensitive  than  he  is 
to  the  sacred  duty  of  making  every  endeavor  to  do  away  with 
the  chances  of  fratricidal  strife.  And  he  looks  with  hopeful  con- 
fidence to  such  active  assistance  from  them  as  will  serve  to 
show  the  broadness  of  our  common  humanity  and  the  strength 
of  the  ties  which  bind  us  all  together  as  a gi’eat  and  harmonious 
system  of  American  commonwealths. 

Impressed  by  these  views,  the  President  extends  to  all  the 
independent  countries  of  North  and  South  America  an  earnest 
invitation  to  participate  in  a general  congress  to  be  held  in  the 
city  of  Washington  on  the  twenty-fourth  day  of  November, 
1882,  for  the  purpose  of  considering  and  discussing  the  methods 
of  preventing  war  between  the  nations  of  America.  He  desires 
that  the  attention  of  the  congress  shall  be  strictly  confined  to 
this  one  great  object;  that  its  sole  aim  shall  be  to  seek  a way  of 
permanently  averting  the  horrors  of  cruel  and  bloody  combat 
between  countries,  oftenest  of  one  blood  and  speech,  or  the 
even  worse  calamity  of  internal  commotion  and  civil  strife; 
that  it  shall  regard  the  burdensome  and  far-reaching  conse- 
quences of  such  struggles,  the  legacies  of  exhausted  finances, 
of  oppressive  debt,  of  onerous  taxation,  of  ruined  cities,  of 
paralyzed  industries,  of  devastated  fields,  of  ruthless  conscrip- 
tion, of  the  slaughter  of  men,  of  the  grief  of  the  widow  and  the 
orphan,  of  embittered  resentments,  that  long  survive  those 
who  provoked  them  and  heavily  afflict  the  innocent  generations 
that  come  after. 

The  President  is  especially  desirous  to  have  it  understood 
that,  in  putting  forth  this  invitation,  the  United  States  does  not 
assume  the  position  of  counsehng,  or  attempting,  through  the 


APPENDIX  TO  CHAPTER  I 


755 


voice  of  the  congress,  to  counsel  any  determinate  solution  of 
existing  questions  which  may  now  divide  any  of  the  countries 
of  America.  Such  questions  cannot  properly  come  before  the 
congress.  Its  mission  is  higher.  It  is  to  provide  for  the  inter- 
ests of  all  in  the  future,  not  to  settle  the  individual  differences 
of  the  present.  For  this  reason  especially  the  President  has 
indicated  a day  for  the  assembling  of  the  congress  so  far  in  the 
future  as  to  leave  good  ground  for  hope  that  by  the  time  named 
the  present  situation  on  the  South  Pacific  coast  will  be  happily 
terminated,  and  that  those  engaged  in  the  contest  may  take 
peaceable  part  in  the  discussion  and  solution  of  the  general 
question  affecting  in  an  equal  degree  the  well-being  of  all. 

It  seems  also  desirable  to  disclaim  in  advance  any  purpose 
on  the  part  of  the  United  States  to  prejudge  the  issues  to  be 
presented  to  the  congress.  It  is  far  from  the  intent  of  this 
government  to  appear  before  the  congress  as  in  any  sense  the 
protector  of  its  neighbors  or  the  predestined  and  necessary 
arbitrator  of  their  disputes.  The  United  States  will  enter  into 
the  deliberations  of  the  congress  on  the  same  footing  as  the 
other  powers  represented,  and  with  the  loyal  determination  to 
approach  any  proposed  solution,  not  merely  in  its  own  interest, 
or  with  a view  to  asserting  its  own  power,  but  as  a single  mem- 
ber among  many  coordinate  and  coequal  States.  So  far  as  the 
influence  of  this  government  may  be  potential,  it  will  be  exerted 
in  the  direction  of  conciliating  whatever  conflicting  interests 
of  blood,  or  government,  or  historical  tradition  may  necessarily 
come  together  in  response  to  a call  embracing  such  vast  and 
diverse  elements. 

You  will  present  these  views  to  the  Minister  of  Foreign  Rela- 
tions of  the  Argentine  Republic,  enlarging,  if  need  be,  in  such 
terms  as  will  readily  occur  to  you,  upon  the  great  mission  which 
it  is  within  the  power  of  the  proposed  congress  to  accomplish 
in  the  interest  of  humanity,  and  upon  the  firm  purpose  of  the 
United  States  to  maintain  a position  of  the  most  absolute  and 
impartial  friendship  towards  all.  You  will  thereupon,  in  the 
name  of  the  President  of  the  United  States,  tender  to  His 
Excellency  the  President  of  the  Argentine  Republic,  a formal 
invitation  to  send  two  commissioners  to  the  congress,  provided 
with  such  powers  and  instructions  on  behalf  of  their  Govern- 
ment as  will  enable  them  to  consider  the  questions  brought 


756 


APPENDIX 


before  that  body  within  the  hmit  of  submission  contemplated 
by  this  invitation.  The  United  States,  as  well  as  the  other 
Powers,  will,  in  hke  manner,  be  represented  by  two  commis- 
sioners, so  that  equahty  and  impartiality  will  be  amply  secured 
in  the  proceedings  of  the  congress. 

In  dehvering  this  invitation  through  the  Minister  of  Foreign 
Affairs,  you  will  read  this  dispatch  to  him  and  leave  with  him  a 
copy,  intimating  that  an  answer  is  desired  by  this  government 
as  promptly  as  the  just  consideration  of  so  important  a proposi- 
tion will  permit.  I am,  etc., 

James  G.  Blaine.' 


‘ Foreign  Eolations,  1881,  pp.  13-15. 


APPENDIX  TO  CHAPTER  III 


1.  A STATED  INTERNATIONAL  CONGRESS 

To  Meet  once  eveey  Five  or  Seven  Years,  to  Deliberate 

UPON  Matters  of  Common  Interest  to  the  Nations 

AND  Make  Recommendations  to  the  Governments 

To  the  General  Court  of  Massachusetts: 

The  Board  of  Directors  of  the  American  Peace  Society,  with 
headquarters  in  Boston,  Massachusetts,  respectfully  petition 
your  honorable  body  to  adopt  a resolution  requesting  the  Con- 
gress of  the  United  States  to  authorize  the  President  of  the 
United  States  to  invite  the  Governments  of  the  world  to  join  in 
estabhshing,  in  whatever  way  they  may  judge  expedient,  a 
regular  international  congress,  to  meet  at  stated  periods — say, 
every  seven  years — to  dehberate  upon  the  various  questions  of 
common  interest  to  the  nations  and  to  make  recommendations 
thereon  to  the  Governments. 

The  following  reasons  lead  us  to  beheve  that  the  time  is  ripe 
for  such  action: 

1.  The  nations  are  today  united,  as  never  before,  in  com- 
mercial, economic,  scientific,  social  and  philanthropic  relations, 
and  their  mutual  interests  are  constantly  and  rapidly  increasing. 

2.  The  questions  constantly  arising  which  concern  them  aU 
so  intimately,  require  their  united  action  for  proper  solution, 
as  the  Governments  themselves  have  long  practically  recog- 
nized. 

3.  Within  the  past  century  about  thirty  important  inter- 
national congresses  and  conferences  have  been  held  for  the  dis- 
cussion and  adjustment  of  matters  of  immediate  and  pressing 
importance — an  average  of  one  about  every  three  and  a half 
years.  These  congresses,  a list  of  the  more  important  of  which 
is  given  below,  have  been  in  large  measure  successful,  and, 
besides  accomplishing  the  ends  for  which  they  were  called,  have 
done  much  to  remove  friction  and  prejudice  and  to  promote 

757 


758 


APPENDIX 


harmony  between  the  nations,  and  thereby  the  general  interests 
of  all. 

4.  These  congresses  have  not  only  increased  in  frequency  in 
recent  years,  and  in  the  number  of  nations  represented  in  them, 
but  they  have  also  tended  to  become  more  and  more  legislative 
or  quasi-legislative,  as  in  the  case  of  the  recent  Pan-American 
Conference,  the  Brussels  Sugar  Congress  and  the  Hague  Peace 
Conference. 

5.  The  organization  of  an  international  congress  of  the  kind 
here  suggested,  to  meet  at  stated  periods,  would  therefore  not 
be  an  altogether  new  experiment,  but  would  continue  in  a 
regular,  permanent  and  more  complete  form,  with  the  increased 
efficiency  and  usefulness  which  permanence  and  regularity 
bring,  what  has  already  been  successfully  tried  on  numerous 
occasions. 

6.  The  idea  of  a world-congress,  on  which  your  honorable 
predecessors  in  the  General  Court  of  Massachusetts  passed 
strong  resolutions  in  1837  and  1838,  has  made  great  progress  in 
recent  years.  At  The  Hague  Peace  Conference  and  the  Pan- 
American  Conference  at  Mexico  City  there  was  a strong  feeling, 
often  expressed,  on  the  part  of  many  of  the  leading  delegates, 
that  such  conferences  ought  to  be  continued  at  regular  intervals. 
Not  a few  publicists  of  the  day  feel  that  the  time  is  near  when, 
in  the  larger  interests  of  humanity  as  a whole,  a world-congress 
with  real  legislative  powers  will  have  to  be  created. 

7.  There  is  reason  to  believe  that  the  proposition  to  organize 
a regular  congress  for  deliberation  and  recommendation  on 
matters  of  general  international  concern  would  not  meet  with 
serious  objection  in  any  quarter  among  the  nations.  The 
creation  of  such  a congress,  whose  recommendations  would 
require  ratification  by  the  nations  before  becoming  public  law, 
would  not  impose  upon  the  Governments  the  sacrifice  of  any 
of  their  sovereignty  and  self-direction.  The  work  of  such  an 
international  body  would  in  a few  decades  enable  the  nations 
to  determine  clearly  whether  it  would  be  expedient  for  them  to 
go  further  and  to  develop  the  organization  into  a world-con- 
gress with  legislative  powers. 

8.  The  Permanent  International  Court  for  the  settlement  of 
controversies  between  nations  has  been  set  up  by  the  leading 
Powers  of  the  world  and  is  now  in  successful  operation.  The 


APPENDIX  TO  CHAPTER  III 


759 


counterpart  and  complement  of  this  court,  to  which  the  refer- 
ence of  disputes  is  voluntary,  would  be  a congress  with  delib- 
erative and  advisory  powers,  which  would  perform  an  equally 
important  service  in  the  development  and  formulation  of  inter- 
national law  as  the  court  will  do  in  its  interpretation  and  appli- 
cation. 

9.  The  meeting  of  regular  international  congresses  for  the 
consideration  of  the  various  common  interests  of  the  nations 
would  exert  a great  and  growing  influence  in  favor  of  amity 
and  mutual  goodwill,  would  lessen  the  dangers  of  war,  and 
assure  the  permanence  of  peace  and  the  continuance  of  prosper- 
ous commercial  relations. 

A.  INTERNATIONAL  CONGRESSES  AND  CONFERENCES 

1815.  The  Congress  of  Vienna,  which  adjusted  the  questions 
left  by  the  Napoleonic  campaigns. 

1825.  The  Conference  of  St.  Petersburg,  which  prepared  the 
way  for  the  independence  of  Greece. 

1831.  The  Conference  of  London,  which  made  Holland  and 
Belgium  independent  nations. 

1856.  The  Congress  of  Paris,  which  disposed  of  the  questions 
entailed  by  the  Crimean  War. 

1864.  The  Geneva  Congress,  which  established  the  Interna- 
tional Red  Cross  Society. 

1867.  The  Conference  of  London,  which  neutralized  the  Grand 

Duchy  of  Luxemburg. 

1868.  The  Congress  of  St.  Petersburg,  which  provided  for  the 

restriction  of  the  use  of  certain  types  of  bullets. 

1871.  The  Conference  of  London,  which  modified  the  Paris 
Treaty  of  1856. 

1874.  The  Congress  of  Brussels,  which  prepared  a restatement 
and  improvement  of  the  laws  of  war. 

1874.  The  first  International  Postal  Congress,  held  at  Berne, 

which  organized  the  Universal  Postal  Union. 

1875.  The  Metrical  Diplomatic  Congress  at  Paris,  which  pre- 

pared the  International  Metric  Convention  and  pro- 
vided for  the  meeting  of  a general  Conference  on 
Weights  and  Measures  at  Paris  at  least  once  every 
six  years. 


760 


APPENDIX 


1875.  The  International  Telegraphic  Conference  at  St.  Peters- 
burg. 

1877.  The  Conference  of  Constantinople,  in  the  interests  of  the 

rights  of  the  Porte’s  Christian  subjects. 

1878.  The  Congress  of  Berlin,  which  modified  the  treaty  of 

San  Stefano  after  the  Russo-Turkish  War  and  rear- 
ranged the  map  of  Eastern  Europe. 

1878.  International  Monetary  Conference  at  Paris,  invited  by 
the  United  States. 

1881.  International  Monetary  Conference  at  Paris,  invited  by 
the  United  States  and  France. 

1884.  The  Berlin  West  African  Congress,  which  set  up  the 

Congo  Free  State. 

1885.  International  Prime  Meridian  Conference  at  Washing- 

ton, invited  by  the  United  States  and  attended  by 
representatives  from  twenty-six  nations. 

1889.  The  Marine  Conference  of  Washington. 

1889.  The  first  Pan-American  Conference  at  Washington. 

1890.  The  Brussels  Anti-Slavery  Conference. 

1892.  International  Sanitary  Conference  at  Venice,  the  pro- 

tocol drawn  by  which  was  signed  by  the  delegates  of 
fifteen  nations. 

1893.  International  Sanitary  Conference  at  Dresden,  in  which 

nineteen  nations  were  represented. 

1896.  The  Universal  Postal  Congress,  held  at  Washington 
and  attended  by  representatives  from  every  nation  on 
the  globe. 

1899.  The  Hague  Peace  Conference,  which  provided  for  the 
organization  of  the  Permanent  International  Court  of 
Arbitration. 

1901.  The  Brussels  Sugar  Congress,  which  provided  for  the 
abohtion  of  sugar  bounties. 

1901.  The  Second  Pan-American  Conference,  held  at  Mexico 
City. 

By  order  of  the  Board  of  Directors, 

Robeet  Treat  Paine,  President. 
Benjamin  F.  Trueblood,  Secretary. 


Boston,  January  1,  190S. 


APPENDIX  TO  CHAPTEK  III 


761 


2.  THE  ADMISSION  OF  LATIN-AMERICA  TO  THE 
SECOND  CONFERENCE 

A ACTION  OF  SECOND  PAN-AMERICAN  CONFERENCE 

On  January  15,  1902,  the  Second  Pan-American  Conference, 
in  session  at  Mexico,  recognized  the  three  conventions  signed 
at  The  Hague  on  July  29,  1899,  as  a part  of  public  international 
American  law,  and  at  the  same  time  requested  the  United  States 
and  Mexico  to  secure  the  admission  of  the  non-signatory  Amer- 
ican States  to  the  benefits  of  the  convention  for  the  peaceful 
settlement  of  international  disputes.  The  exact  text  of  the 
project  follows: 


Article  1 

The  American  Republics  represented  at  the  International  Conference  of 
American  States  in  Mexico,  which  have  not  subscribed  to  the  three  Con- 
ventions signed  at  The  Hague  on  the  29th  of  July,  1899  hereby  recognize 
as  a part  of  Public  International  American  Law  the  principles  set  forth 
therein. 


Article  2 

With  respect  to  the  Conventions  which  are  of  an  open  character  the 
adherence  thereto  will  be  communicated  to  the  Government  of  Holland 
through  diplomatic  channels  by  the  respective  Governments,  upon  the 
ratification  thereof. 


Article  3 

The  wide  general  convenience  being  so  clearly  apparent  that  would  be 
secured  by  confiding  the  solution  of  differences  to  be  submitted  to  arbitra- 
tion to  the  jurisdiction  of  a tribunal  of  so  high  a character  as  that  of  the 
Arbitration  Court  at  The  Hague,  and,  also,  that  the  American  nations,  not 
now  signatory  to  the  Convention  creating  that  beneficent  institution, 
can  become  adherents  thereto  by  virtue  of  an  accepted  and  recognized  right; 
and,  further,  taking  into  consideration  the  offer  of  the  Government  of  the 
United  States  of  America  and  the  United  States  of  Mexico,  the  Conference 
hereby  confers  upon  said  governments  the  authority  to  negotiate  with 
the  other  Signatory  Powers  to  the  Convention,  for  the  Peaceful  Adjust- 
ment of  International  Differences  for  the  adherence  thereto  of  the  American 
Nations  so  requesting  and  not  now  signatory  to  the  said  Convention.' 

* International  American  Conference,  Vol.  II,  pp.  336-337. 


762 


APPENDIX 


B.  EXTRACT  FROM  MR.  ROOT’S  LETTER  OF  MARCH  22, 1906,  TO 

PROGRAM  COMMITTEE  OF  THE  THIRD  PAN-AMERICAN  CON- 
FERENCE 

You  will  recall  that  the  Conference  in  Mexico  adopted  a protocol  of  ad- 
herence to  the  conventions  of  The  Hague,  and,  in  the  third  article  of  that 
protocol  conferred  upon  the  Governments  of  the  United  States  of  America 
and  the  United  States  of  Mexico  authority  to  negotiate  with  the  other  sig- 
natory Powers  to  the  Convention  for  the  peaceful  adjustment  of  inter- 
national differences,  for  the  adherence  thereto  of  the  American  nations  so 
requesting  and  not  then  signatory  to  the  said  Convention. 

At  different  times  since  the  Mexican  Conference  the  United  States  has 
endeavored  to  secure  the  admission  of  individual  States  of  Central  and 
South  America  as  additional  signatories  to  The  Hague  Convention,  but 
without  avail,  for  the  reason  that  no  express  provision  was  made  therefor 
in  The  Hague  Convention. 

In  October,  1904,  Mr.  Hay,  in  taking  the  initiative  on  behalf  of  the 
United  States  for  the  calling  of  a second  Conference  at  The  Hague,  made 
one  of  the  subjects  of  his  letter  to  all  the  Signatory  Powers,  a suggestion  for 
the  consideration  and  adoption  of  a procedure  by  which  States  non-signa- 
tory to  the  original  acts  of  The  Hague  Conference  might  become  adhering 
parties.  This  was  further  pressed  upon  the  Powers  by  a note  commimi- 
cated  to  all  of  them  in  December,  1904.  Accordingly  when,  in  October, 
1905,  upon  the  close  of  the  war  between  Japan  and  Russia,  the  President 
of  the  United  States  yielded  to  Russia  the  initiative  in  bringing  a Second 
Hague  Conference,  Russia  included  all  the  South  American  States  in  the 
call  for  the  Conference,  and  nearly  all  of  them  have  accepted  the  invitation. 

It  is  evident  that  by  thus  pressing  for  inclusion  of  all  the  American  States 
in  the  general  agreement  of  the  nations  at  The  Hague,  we  have  all  of  us 
assumed  a responsibility  which  we  must  be  prepared  to  discharge  when  the 
next  Conference  is  convened.  It  appears  to  me  that  it  is  very  desirable 
that  the  way  in  which  that  responsibility  shall  be  discharged  shoud  be 
made  the  subject  of  consultation  and  discussion  at  the  Rio  Conference,  so 
that  the  delegates  of  the  American  States  may  attend  The  Hague  Con- 
ference with  well  considered  and  matured  instructions.* 

C.  EXTRACT  FROM  MR.  ROOT’S  INSTRUCTIONS  TO  AMERICAN 

DELEGATION  TO  THE  THIRD  PAN-AMERICAN  CONFERENCE, 

JUNE  18,  1906. 

The  Second  American  Conference  at  Mexico  adopted  a resolution  Janu- 
ary 15,  1902,  authorizing  the  Governments  of  the  United  States  and  Mexico 
to  negotiate  with  the  other  Signatory  Powers  for  the  adherence  of  the  Ameri- 
can States  to  the  general  arbitration  convention,  and  the  United  States  sub- 
sequently applied  in  behalf  of  several  of  the  other  American  States  for  their 
admission  to  become  signatories  to  the  convention.  The  Signatory  Powers, 
however,  never  came  together  in  an  agreement  upon  the  contemplated  con- 
ditions of  adherence,  and  the  requests  preferred  by  the  United  States  were 
refused. 

* Quoted  from  Luis]  M.  Drago’s  Cobro  Coercitivo  de  Deudas  PiibUcas, 
pp.  153-156  (1906). 


APPENDIX  TO  CHAPTER  III 


763 


On  the  21st  of  October,  1904,  the  United  States  issued  a proposal  to  the 
Signatory  Powers  of  the  First  Hague  Conference  for  a second  conference 
and  specified  as  one  of  the  things  to  be  done  the  adoption  of  a procedure 
by  which  States  nonsignatory  to  the  original  acts  might  become  adhering 
parties.  This  proposal  met  with  general  acceptance,  but  the  calling  of 
the  Conference  was  postponed,  owing  to  the  war  between  Russia  and  Japan. 
On  the  13th  of  September,  1905,  the  further  initiative  in  calling  the  Con- 
ference was  taken  by  the  Emperor  of  Russia,  with  the  ready  concurrence 
of  the  President,  and  the  Emperor  of  Russia  included  in  his  invitation  to 
the  Second  Conference  all  the  American  States. 

As  a part  of  the  preliminary  arrangements  for  the  Second  Hague  Confer- 
ence, it  has  been  agreed  that  in  order  that  all  the  States  represented  at  the 
Second  Conference  may  be  upon  the  same  footing  in  discussing  modifications 
or  extensions  of  the  treaty  of  arbitration,  the  first  business  of  the  Second 
Conference  shall  be  to  authorize,  by  a preliminary  protocol,  the  adherence 
of  all  the  nonsignatory  States  to  the  arbitration  treaty  of  the  First  Confer- 
ence. This  understanding  has  been  communicated  by  Russia  to  all  the 
Signatory  States,  and  their  assent  to  it  is  regarded  as  making  the  proposed 
action  certain  and  leaving  nothing  further  to  be  done  but  the  formal  action 
to  be  taken  at  the  opening  of  the  Second  Hague  Conference. 

All  of  the  American  States  are  accordingly  at  liberty  to  become  parties 
to  the  general  arbitration  treaty  of  The  Hague  and  to  take  part  in  the  con- 
sideration by  the  whole  civilized  world  of  the  advances  which  may  be 
made  in  the  application  of  the  principle  of  arbitration. 

The  Conference  at  Rio  can  probably  render  no  more  useful  service  to 
the  cause  of  arbitration  than  by  securing  the  general  assent  of  the  American 
States  to  the  principles  which  should  receive  a new  impetus  and  universal 
effect  at  The  Hague.* 

D.  THE  QUESTION  OF  ADHERENCE  OF  NONSIGNATORY 
STATES  TO  THE  FIRST  CONVENTION  OF  1899  UNDER 
ARTICLE  60  TO  ENABLE  THEM  TO  PARTICIPATE  IN  THE 
SECOND  CONFERENCE 

(a)  THE  ACTING  SECRETARY  OF  STATE  TO  THE 
BRAZILIAN  AMBASSADOR 

Department  of  State, 
Washington,  March  5,  1907. 

My  dear  Mr.  Ambassador:  This  Government  recently  in- 
structed its  Ambassador  at  St.  Petersburg  to  ascertain  from 
the  Russian  Government  what  answer  had  been  received  from 
the  Signatory  Powers  of  the  first  arbitration  treaty  of  the  First 
Peace  Conference  to  the  proposal  that  the  adherence  of  the  non- 
signatory American  States  should  be  accepted,  so  as  to  enable 

‘ Report  of  the  Delegates  of  the  United  States  to  the  Third  Interna- 
tional Conference  of  the  American  States,  pp.  40-41  (1907). 


764 


APPENDIX 


them  all  to  participate  in  the  Second  Conference.  I am  today 
advised  by  Ambassador  Riddle  by  cable  that  he  is  informed  by 
the  Russian  Minister  for  Foreign  Affairs  that  assents  have  been 
received  by  Russia  from  all  the  signatories  except  Belgium, 
China,  and  Turkey,  which  have  not  yet  replied.^ 

For  greater  convenience  in  appreciating  the  true  force  of  this 
information,  let  me  restate  the  various  steps  which  have  been 
taken  upon  this  subject. 

1.  In  a note  dated  April  12,  1906,  the  Russian  Government 
remarked  that  several  of  the  States  invited  to  participate  in  the 
Second  Conference  had  not  taken  part  in  the  First  Conference, 
and  that  a difficulty  of  form  only  stood  in  the  way  of  their  admis- 
sion to  the  Second  Conference,  that  difficulty  consisting  of  the 
fact  that  they  had  not  adhered  to  the  arbitration  treaty  signed 
at  the  First  Conference  and  could  not  adhere  without  an  agree- 
ment between  the  Signatory  Powers. 

That  difficulty  Russia  proposed  to  dispose  of  by  the  suggestion 
that  on  the  opening  of  the  Second  Conference  the  representa- 
tives of  the  States,  parties  to  the  First  Conference,  should  sign 
the  following  protocol: 

The  representatives  at  the  Second  Peace  Conference  of  the  States  Signa- 
tories of  the  Convention  of  1899  relative  to  the  peaceful  settlement  of  inter- 
national disputes,  duly  authorized  to  that  effect,  have  agreed  that  in  case 
the  States  that  were  not  represented  at  the  First  Peace  Conference,  but  have 
been  convoked  to  the  present  Conference,  should  notify  the  Government  of 
the  Netherlands  of  their  adhesion  to  the  above-mentioned  convention  they 
shall  be  forthwith  considered  as  having  acceded  thereto. 

The  assent  of  the  Signatory  Powers  to  this  proposal  was  asked 
by  Russia. 

2.  The  United  States  promptly  gave  its  assent  to  the  course 
in  a reply  which  said : 

It  is  the  understanding  of  the  United  States  that  should  the  other 
Powers  who  took  part  in  that  Conference  (the  First  Conference)  assent  to 
the  proposal  of  your  note  of  April  12,  that  assent  in  itself  will  have  the 
effect  of  making  it  certain  that  the  adhesion  of  the  Powers  which  did  not 
take  part  in  the  First  Conference  will  be  accepted,  so  that  their  represent- 
atives can  go  to  the  Second  Conference  without  feeling  that  there  is  any 
uncertainty  as  to  whether  they  can  take  full  part  in  the  Conference. 

' Belgium  signified  its  assent  March  29,  1907  (telegram  that  date  from 
Minister  Wilson  to  Department  of  State).  China  assented  March  28,  1907 
(telegram  dated  March  29  from  Minister  Rockhill  to  Department  of  State). 
Turkey  consented  April  13,  1907  (telegram  dated  April  14,  1907  from 
Ambassador  Leishman  to  Department  of  State). — Ms.  Records,  Depart- 
ment of  State. 


APPENDIX  TO  CHAPTER  III 


765 


3.  To  this  note  the  Russian  Government  replied  as  follows: 

The  desire  that  the  newly  invited  Powers  be  permitted  from  the  outset  to 
participate  in  the  Conference  is  the  basis  of  our  project  for  the  settlement  of 
the  question  of  their  adhering  to  the  First  Convention  of  1899.  If  all  the 
Signatory  Powers  accept  this  procedure,  the  Conference  will  not  have  to 
pass  upon  the  question  of  adhesion.  To  our  mind,  the  Conference  will  have 
but  to  take  formal  notice  of  that  fact  at  its  first  session,  in  which  all  the 
Powers  that  have  adhered  to  the  second  and  third  conventions  and  declared 
their  desire  to  adhere  to  the  first  shall  be  permitted  to  take  part. 


The  fact  that  the  necessary  assent  to  this  procedure  has  been 
received  from  all  the  Powers  except  Belgium,  China,  and  Turkey, 
which  have  not  yet  replied,  seems  to  leave  no  doubt  that  the 
Russian  proposal  will  be  accepted  by  all  the  Powers  and  to 
justify  preparations  for  attendance  at  the  Second  Conference 
upon  this  assumption. 

I have  communicated  this  information  under  the  impression 
that  it  may  contribute  to  your  convenience,  in  view  of  the  fact 
that  the  time  before  the  meeting  of  the  Conference  is  growing 
short  and  that  the  Russian  Government  may  not  deem  it 
proper  to  communicate  with  you  until  all  the  answers  have 
been  received. 


I am,  etc.. 


Robert  Bacon, 

Acting  Secretary. 


The  above  note  also  sent  to : 

Minister  to  Uruguay. 

Minister  to  Dominican  Republic. 

Minister  to  Panama. 

Minister  to  Nicaragua. 

Minister  to  Peru. 

Charg4  d’Affaires  ad  interim  of  Guatemala. 

Charg4  d’Affaires  ad  interim  of  Honduras. 

Minister  of  Costa  Rica. 

Minister  of  Colombia. 

Minister  of  Bolivia. 

Minister  of  Argentine  Republic. 

Minister  of  Haiti. 

Charg4  d’Affaires  ad  interim  of  Chile. 

Charg4  d’Affaires  ad  interim  of  Venezuela. 

Minister  of  Ecuador. 

(b)  As  the  result  of  prolonged  negotiations,  the  Secretary  of 


766 


APPENDIX 


State  was  able  to  inform  our  Minister  to  the  Netherlands  on 
April  17,  1907,  that 

The  Russian  Government,  in  its  note  of  April  12,  1906,  has  set  out  a 
copy  of  a proposed  agreement  under  this  provision  and  all  the  contracting 
Powers  have  now  assented  to  it.  It  provides  that  in  case  the  States  not 
represented  at  the  First  Conference  shall  notify  the  government  of  the 
Netherlands  of  their  adhesion  to  the  above-mentioned  convention,  they 
shall  be  forthwith  considered  as  having  acceded  thereto. 

It  is  plainly  unnecessary  for  the  South  American  Powers  to  enter  into 
any  new  treaty  with  the  Netherlands  or  with  anyone  else,  except  by  a mere 
notice  of  adhesion.  That  notice  must  of  course  come  either  from  the 
Minister  for  Foreign  Affairs  direct  or  from  some  representative  who  has 
power  to  give  the  notice. 


(c)  MINISTER  HILL  TO  THE  SECRETARY  OF  STATE 
[No.  218]  American  Legation, 

The  Hague,  April  18,  1907. 

Sir:  I have  the  honor  to  acknowledge  the  receipt  of  your 
telegram  of  April  17  . . . . 

And  to  confirm  my  telegraphic  reply  .... 

By  way  of  comment  I have  to  add  that  the  Netherlands 
Minister  for  Foreign  Affairs  has  had  no  thought  of  the  necessity 
of  the  South  American  or  other  nonsignatories  of  The  Hague 
Convention  entering  into  any  new  treaty  with  the  Netherlands 
or  with  anyone  else  except  by  a mere  notice  of  adhesion  to  The 
Hague  Convention.  He  agrees  with  the  view  expressed  in  3mur 
telegram  that  this  notice  must  come  either  from  the  Minister  for 
Foreign  Affairs  direct  or  from  some  representative  who  has  power 
to  give  the  notice,  as  explained  in  the  next  to  the  last  paragraph 
of  my  No.  206.  He  only  insists  that  notification  must  be  given 
of  adhesion  before  the  Conference  meets,  and  his  expectation 
was  that  any  Government  not  having  already  given  formal 
written  notice  of  adhesion  would  provide  its  delegates,  or  its 
plenipotentiary  here,  with  full  powers  to  notify  adhesion.  He 
considers  it  sufficient  that  the  notification,  if  in  sufficient  time, 
should  be  sent  in  any  authentic  form,  but  wished  to  emphasize 
the  necessity  of  formal  notice  of  adhesion,  as  provided  for  in 
the  Russian  note  of  April  12,  1906,  as  an  essential  preliminary 
to  participation  in  the  Conference. 


APPENDIX  TO  CHAPTER  III 


767 


In  our  conversation  today,  the  Minister  repeated  the  point 
presented  in  the  last  paragraph  of  my  No.  206,  namely,  that  he 
would  expect  that  representatives  of  the  Governments  assent- 
ing to  the  Russian  proposal  of  April  12,  1906,  in  accordance  with 
Article  80  of  the  arbitration  convention,  would  be  authorized  to 
sign  a formal  protocol  setting  forth  that  these  Governments 
give  their  assent  to  the  adherence  of  the  nonsignatories  in  the 
manner  proposed.  He  added  that  he  had  notified  all  the  assent- 
ing Governments  that  such  a protocol  would  be  prepared,  and 
that  he  would  expect  it  to  be  signed  in  the  Treves  Zaal  on  the 
day  before  the  opening  of  the  Conference  by  the  empowered 
representatives  of  the  assenting  Governments.  When  this 
notice  is  received  at  Washington  this  point  will,  no  doubt,  be 
made  perfectly  clear. 

There  appears,  then,  to  be  no  material  difference  of  view 
between  the  position  taken  in  your  telegram  and  the  under- 
standing of  the  Netherlands  Government,  so  far  as  the  adhesion 
of  the  South  American  States  is  concerned.  After  my  full  and 
clear  discussion  of  the  whole  subject  with  the  Minister  for 
Foreign  Affairs,  I do  not  see  how  any  embarrassment  can  arise 
for  the  adhering  States,  provided  (1)  they  notify  the  Nether- 
lands Minister  for  Foreign  Affairs  of  their  adhesion,  either,  as 
you  suggest,  directly  through  their  Ministers  for  Foreign  Affairs 
or  through  authorized  representatives;  and  (2)  provided  the 
representatives  of  the  assenting  Signatory  Powers  are  duly 
authorized  to  sign  the  protocol  as  requested  by  the  Netherlands 
Government. 

Regarding  this  last,  I may  say  that  it  appears  to  be  considered 
by  the  Minister  for  Foreign  Affairs  of  the  Netherlands  as  a 
desirable  method  of  giving  unity  and  finality  to  the  action  taken 
under  Article  60  of  the  convention  of  arbitration.  It  is  intended 
to  sum  up  in  one  formal  act  the  Russian  proposal  and  the 
assent  of  the  Signatory  Powers.  Whatever  difference  of  opinion 
there  may  be  about  the  necessity  of  thus  solemnizing  in  one 
document  the  action  taken  by  the  Powers  individually,  com- 
pliance with  the  wishes  of  the  Netherlands  Government  in  this 
respect  can  occasion  no  great  inconvenience  and  will  put  the 
conclusion  reached  beyond  all  question.  It  is  not  intended 
that  this  protocol  shall  have  the  form  of  a new  treaty,  but  that 
it  shall  merely  affirm  in  one  document  the  action  taken  by  the 


768 


APPENDIX 


proposal  contained  in  the  Russian  note  of  April  12  and  the 
assent  of  the  Powers  separately  given  in  conformity  with  it. 
Nor  does  the  action  of  the  States-General  of  the  Netherlands 
authorizing  the  extension  of  the  ratification  of  the  existing 
Hague  Convention  to  new  adherents  contemplate  any  new 
treaties.  This  action  was  taken  in  order  to  place  beyond  all 
question  the  constitutional  legality  of  admitting  the  new  adher- 
ents to  these  conventions,  so  far  as  the  Netherlands  is  concerned, 
and  has  significance  only  from  a Netherlands  point  of  view. 
It  is  entirely  a constitutional,  and  not  an  international,  measure, 
designed  to  meet  the  requirements  of  the  fundamental  law  of 
the  country. 

There  is,  therefore,  no  question  of  any  new  treaty  connected 
with  the  adhesion  of  the  South  American  or  other  States  to  the 
Convention  of  1899.  That  adhesion  may  be  accomplished  by 
mere  notifications  by  the  respective  adherents  with  the  assent 
of  the  original  Signatory  Powers.  Everything  else  is  a matter 
of  form,  which  the  Netherlands  Government,  being  charged  with 
the  execution  of  the  convention  of  arbitration  in  this  respect, 
feels  called  upon  to  regulate. 

I have,  etc.,  David  J.  Hill. 

(d)  THE  NETHERLAND  MINISTER  TO  THE  SECRE- 
TARY OF  STATE 

YTranslation.'l 

[No.  259]  Royal  Legation  of  the  Netherlands, 

Washington,  D.  C.,  May  7,  1907. 

Mr.  Secretary  of  State:  By  order  of  my  Government,  I 
have  the  honor  to  advise  Your  Excellency  that  the  Cabinet  of 
St.  Petersburg  has  notified  the  Government  of  the  Queen  that 
all  the  Governments  which  took  part  in  the  First  Peace  Con- 
ference have  accepted  the  proposition,  addressed  to  them  by  the 
Imperial  Government,  that  they  sign,  before  the  opening  of  the 
forthcoming  Peace  Conference,  a special  protocol  concerning 
the  mode  of  adhesion  to  the  convention  for  the  peaceful  settle- 
ment of  international  disputes  on  the  part  of  the  Powers  which 
did  not  take  part  in  the  First  Conference  but  have  been  invited 
to  the  Second  Conference. 


APPENDIX  TO  CHAPTER  III 


769 


The  protocol,  of  which  the  text  is  appended  hereto,  shall  be 
signed  at  The  Hague,  at  2 p.m.  on  June  14  next,  in  the  Hall  of 
Truce. 

I am  instructed  by  my  Government  to  ask  that  the  American 
Government  will  supply  its  representatives  at  The  Hague  with 
the  requisite  full  powers  to  sign  the  protocol  on  the  above- 
indicated  date. 

Hereby  complying  with  my  orders,  I beg  that  Your  Excel- 
lency wUl  kindly  let  me  know  what  reception  is  to  be  given  to 
this  request,  and  embrace  the  opportunity  to  renew  to  Your 
Excellency  the  assurance  of  my  highest  consideration. 

Van  Swinderen. 


{Indosure  No.  1.] 

Les  Repr^sentants  la  deuxieme  Conference  de  la  Paix  des  6tats 
signataires  de  la  Convention  de  1899  relative  du  reglement  pacifique  des 
conflits  internationaux,  ddment  autorises  ^ cet  effet,  sont  tombes  d’accord 
que,  dans  le  cas,  od  les  6tats  qui  n’avaient  pas  et6  representes  a la  Premiere 
Conference  de  la  Paix,  mais  qui  ont  ete  convoqu^s  k la  Conference  actuelle, 
notifieraient  au  Gouvemement  Neerlandais  leur  adhesion  a la  Convention 
susmentionnee,  ils  seraient  aussitot  consideres  comme  y ayant  accede. 

TRANSLATION  OF  PROTOCOL. 

[Inclosure  No.  2.] 

The  Representatives,  at  the  Second  Peace  Conference,  of  the  States 
signatory  to  the  Convention  of  1899  relative  to  the  pacific  settlement  of 
international  disputes,  duly  authorized  to  that  effect,  have  agreed  that  in 
case  the  States  which  were  not  represented  at  the  first  Peace  Conference 
but  have  been  invited  to  the  present  Conference  should  notify  the  Nether- 
lands Government  of  their  adhesion  to  the  above-mentioned  Convention 
they  would  forthwith  be  considered  as  having  acceded  thereto. 


(e)  THE  ACTING  SECRETARY  OF  STATE  TO  THE 
NETHERLAND  MINISTER 

[No.  134]  Department  of  State, 

Washington,  May  11,  1907. 

Sir:  I have  the  honor  to  acknowledge  the  receipt  of  your 
note  of  the  7th  instant,  inclosing,  by  order  of  your  Govern- 


770 


APPENDIX 


merit,  the  text  of  a protocol  concerning  the  adhesion  of  States 
not  represented  at  the  First  Conference  to  the  convention  for 
the  pacific  settlement  of  international  disputes,  and  requesting 
that  the  American  delegates  to  the  Second  Peace  Conference  be 
supplied  with  full  powers  to  sign  the  protocol  at  The  Hague  on 
June  14. 

In  reply  I have  the  honor  to  inform  you  that  the  President 
has  issued  his  full  power  authorizing  the  American  delegates  to 
sign  the  protocol  for  and  in  the  name  of  the  United  States. 

Accept,  etc.,  Robert  Bacon, 

Acting  Secretary. 

E.  PROTOCOL  PERMITTING  ADHERENCE 

The  Powers  which  have  ratified  the  Convention  for  the  peace- 
ful settlement  of  international  disputes,  signed  at  The  Hague, 
on  July  29,  1899,  desiring  to  enable  the  States  that  were  not 
represented  at  the  First  Peace  Conference  and  were  invited  to 
the  Second  to  adhere  to  the  aforesaid  Convention,  the  under- 
signed delegates  or  diplomatic  representatives  of  the  above 
mentioned  Powers,  viz : 

Germany,  Austria-Hungary,  Belgium,  Bulgaria,  China,  Den- 
mark, Spain,  the  United  States  of  America,  the  United  Mexican 
States,  France,  Great  Britain,  Greece,  Italy,  Japan,  Luxem- 
bourg, Montenegro,  Norway,  the  Netherlands,  Persia,  Portu- 
gal, Roumania,  Russia,  Servia,  Siam,  Sweden,  Switzerland, 
and  Turkey,  duly  authorized  to  that  effect,  have  agreed  that 
there  shall  be  opened  by  the  Minister  of  Foreign  Affairs  of  the 
Netherlands,  a proces-verbal  of  adhesion  that  shall  serve  to 
receive  and  record  the  said  adhesions,  which  shall  immediately 
go  into  effect.  In  witness  whereof  the  present  protocol  was 
drawn  up,  in  a single  copy,  which  shall  remain  in  deposit  in 
the  archives  of  the  Ministry  of  Foreign  Affairs  of  the  Netherlands 
and  of  which  an  authenticated  copy  shall  be  transmitted  to 
each  one  of  the  Signatory  Powers. 

Done  at  The  Hague,  June  14,  1907. 

Germany:  Belgium: 

K.  VON  SCHLOZER  GuiLLAUME 

Austria-Hungary : Bulgaria : 

G.  DE  M6rEY  G^NilRAlr-MAJOR 

ViNAROFF 


APPENDIX  TO  CHAPTER  III 


771 


China: 

Lou  Tseng-Tsiang 
Denmark: 

C.  Brun 
C.  F.  SCHELLER 
A.  VedeIi 
Spain: 

Josi:  de  la  Rica  y Calvo 
United  States: 

Joseph  H.  Choate 
Horace  Porter 
U.  M.  Rose 
David  Jayne  Hill 
Wm.  I.  Buchanan 
C.  S.  Sperry 
Geo.  B.  Davis 
Mexico : 

Gonzalo  a.  Esteva 
S.  B,  DE  Mier 

F.  L.  DE  LA  Barra 
France: 

L^on  Bourgeois 

Great  Britain: 

Henry  Howard 

Greece: 

CLi)ON  KiZO  RANGABi: 
Georges  Streit 
Italy: 

G.  Tornielli 
G.  POMPILJ 

Japan: 

Keiroku  Tsudzuki 
Aimaro  Sato 
Luxembourg: 

Eijschen 

Count  de  Villbrs 


Montenegro: 

A.  Nelidow 
Martens 
N.  Tcharykow 
Norway: 

F.  Hagerup 
Netherlands : 

W.  D.  de  Beaufort 
Persia: 

Momtazos  Saltaneh  M. 

Samad  Khan 
Sadigh  Ul  Mulk  M, 
Ahmed  Khan 
Portugal: 

Comte  de  Selir 

Roumania: 

A,  Beldiman 
Edg.  Mavrocordato 
Russia: 

A.  Nelidow 
Martens 
N.  Tcharykow 
Servia: 

S.  Grouitch 
M.  Milovanovitch 
M.  Militchevttch 
Siam: 

Chatidej 

Corragioni  D’Orelli 
Lg.  Bhuvanarth 
Sweden: 

H.  L.  Hammarskjold 

Switzerland: 

Carlin 

Turkey: 

H.  Missak 


772 


APPENDIX 


F.  PROCES- VERBAL  OF  ADHERENCE 


There  was  signed  in  this  city  on  the  14th  of  June,  1907,  a 
protocol  establishing,  in  respect  to  the  Powers  unrepresented 
at  the  First  Peace  Conference  which  have  been  invited  to  the 
the  Second,  the  mode  of  adhesion  to  the  Convention  for  the 
peaceful  settlement  of  International  Disputes,  signed  at  The 
Hague,  July  29,  1899. 

Pursuant  to  the  said  protocol,  the  undersigned,  Minister  of 
Foreign  Affairs  for  Her  Majesty  the  Queen  of  the  Netherlands, 
on  this  day  opened  the  present  proces-verbal  intended  to 
receive  and  furthermore  to  record,  as  they  may  be  presented, 
the  adhesions  of  the  aforesaid  Convention. 

Done  at  The  Hague,  on  the  25th  of  June,  1907,  in  a single 
copy,  which  shall  remain  in  deposit  in  the  archives  of  the  Min- 
istry of  Foreign  Affairs  of  the  Netherlands  and  of  which  a duly 
certified  copy  shall  be  transmitted  to  each  one  of  the  Signatory 
Powers. 

Van  Tets  Van  Goudriaan. 


Successively  adhered: 

Argentine,  June  15,  1907: 
Roque  Saenz  Pena 
Luis  M.  Draco 
Carlos  Rodriguez  Lar- 

RETA 

Brazil,  June  15,  1907: 

Ruy  Barbosa 
Bolivia,  June  15,  1907: 
Claudio  Pinilla 
Fernando  E.  Guachalla 
Chili,  June  15, 1907: 

Domingo  Gana 
Augusto  Matte 
Carlos  Concha 
Colombia,  June  15, 1907 : 
Jorge  Holguin 
M.  Vargas 
S.  Perez  Triana 


Nicaragua,  June  15,  1907: 
Crisanto  Medina 

Panama,  June  15,  1907: 

B.  PORRAS 

Paraguay,  June  15,  1907: 

E.  Machain 

Peru,  June  15, 1907: 

C.  G.  Candamo 

Dominican  Repubhc,  June  15, 
1907: 

Apolinar  Tejera 
Dr.  Henriquez  y Car- 

VAJAL. 

Venezuela,  June  15,  1907 : 

J.  G.  Fortoul 


APPENDIX  TO  CHAPTER  III 


773 


Cuba,  June  15,  1907 : 

Antonio  S.  de  Busta- 
mante ■ 

Gonzalo  de  Quesada 
Manuel  Sanguily 
Gautemala,  June  15,  1907: 

Jose  Tible  Machado 
Haiti,  June  15,  1907: 

Jean  Joseph  Dalbemar 
Pierre  Hudicourt 


Uruguay,  June  17,  1907: 

Jos6  Batlle  y Ordonez 
Juan  P.  Castro 

Salvador,  June  20,  1907: 

P.  J.  Matheu 
S.  Perez  Triana 

Ecuador,  July  3,  1907 : 
Victor  Rendon 
E.  Dorn  y de  Alsua 


3.  THE  REGLEMENT  OF  THE  SECOND  CONFERENCE 


Article  1 

The  Second  Peace  Conference  is  composed  of  all  the  plenipo- 
tentiaries and  technical  delegates  of  the  Powers  which  have 
signed  or  adhered  to  the  conventions  and  acts  signed  at  the 
First  Peace  Conference  of  1899. 

Article  2 

After  organizing  its  bureau,  the  Conference  shall  appoint  com- 
missions to  study  the  questions  comprised  within  its  program. 

The  plenipotentiaries  of  the  Powers  are  free  to  register  on  the 
lists  of  these  commissions  according  to  their  own  convenience 
and  to  appoint  technical  delegates  to  take  part  therein. 

Article  3 

The  Conference  shall  appoint  the  president  and  vice-presi- 
dents of  each  commission.  The  commissions  shall  appoint  their 
secretaries  and  their  reporter. 

Article  4 

Each  commission  shall  have  the  power  to  divide  itself  intu 
sub-commissions  which  shall  organize  their  own  bureau. 

Article  5 

An  editing  committee  for  the  purpose  of  coordinating  the 
acts  adopted  by  the  Conference  and  preparing  them  in  their 


774 


APPENDIX 


final  form  shall  also  be  appointed  by  the  Conference  at  the 
beginning  of  its  labors. 


Article  6 

The  members  of  the  delegations  are  all  authorized  to  take 
part  in  the  deliberations  at  the  plenary  sessions  of  the  Con- 
ference as  well  as  in  the  commissions  of  which  they  form  part. 
The  members  of  one  and  the  same  delegation  may  mutually 
replace  one  another. 

Article  7 

The  members  of  the  Conference  attending  the  meetings  of  the 
commissions  of  which  they  are  not  members  shall  not  be  entitled 
to  take  part  in  the  deliberations  without  being  specially  author- 
ized for  this  purpose  by  the  presidents  of  the  commissions. 

Article  8 

When  a vote  is  taken  each  delegation  shall  have  only  one  vote. 

The  vote  shall  be  taken  by  roll  call,  in  the  alphabetical  order 
of  the  Powers  represented. 

[The  delegation  of  one  Power  may  have  itself  represented  by 
the  delegation  of  another  Power.] 

Article  9 

Every  proposed  resolution  or  desire  to  be  discussed  by  the 
Conference  must,  as  a general  rule,  be  delivered  in  writing  to 
the  president,  and  be  printed  and  distributed  before  being  taken 
up  for  discussion. 

Article  10 

The  public  may  be  admitted  to  the  plenary  sessions  of  the 
Conference.  Tickets  shall  be  distributed  for  this  purpose  by 
the  Secretary-General  with  the  authorization  of  the  president. 

The  Bureau  may  at  any  time  decide  that  certain  sessions 
shall  not  be  public. 

Article  11 

The  minutes  of  the  plenary  sessions  of  the  Conference  and  of 
the  commissions  shall  give  a succinct  resume  of  the  delibera- 
tions. 


APPENDIX  TO  CHAPTER  III 


775 


A proof  copy  of  them  shall  be  opportunely  delivered  to  the 
members  of  the  Conference  and  they  shall  not  be  read  at  the 
beginning  of  the  sessions. 

Each  delegate  shall  have  a right  to  request  the  insertion  in 
full  of  his  official  declarations  according  to  the  text  delivered  by 
him  to  the  secretary,  and  to  make  observations  regarding  the 
minutes. 

The  reports  of  the  commissions  and  subcommissions  shall  be 
printed  and  distributed  before  being  taken  up  for  discussion. 

Article  12 

The  French  language  is  recognized  as  the  official  language  of 
the  deliberations  and  of  the  acts  of  the  Conference. 

The  Secretary-General  shall,  with  the  consent  of  the  speaker 
himself,  see  that  speeches  delivered  in  any  other  language  are 
summarized  orally  in  French. 


APPENDIX  TO  CHAPTER  V. 


EXTRACT  FROM  WEST’S  SYMBOLEOGRAPHY  (1592- 
1594,  EDITION  OF  1627,  PART  II,  pp.  136  ET.  SEQ.), 
CONCERNING  COMPROMISE  AND  ARBITREMENTS. 

Sect.  1.  A Compromise  or  Submission,  Arbitrium,  Compromissum,  Sub- 
missio,  is  the  facultie  or  power  of  pronouncing  Sentence  betweene  persons 
at  controversie,  given  to  arbitrators  by  the  parties  mutuall  privat  consent, 
without  publique  authorite. 

Sect.  2.  Everie  compromise  is  generaU  or  speciall. 

Sect.  3.  A Generali  Compromise  is  of  all  quarreUs,  actions,  executions, 
and  demands,  &c. 

Sect.  4.  A speciall  compromise  is  every  submission  to  order,  which  is 
not  so  generall  as  when  it  is  of  certain  matters,  facts,  or  things  only,  as  of 
Trespasse,  or  of  all  actions  of  trespasse,  or  of  a pliant  or  debt,  or  detenue, 
&c. 

Sect.  5.  As  of  every  other  judgement,  so  of  judgements  which  grow  by 
compromise,  there  are  two  parts,  the  persons  and  the  question. 

Sect.  6.  Persons  chiefly  regarded  in  compromise,  are  the  striving  parties 
& the  Arbitrators. 

Sect.  7.  The  parties  striving  be  they  between  whom  the  controversie 
dependeth,  and  which  compromise  the  same. 

Sect.  8.  And  they  must  be  two  at  the  least,  namely  theplaintife  and  the 
defendant,  of  which  sometime  there  be  two  or  more  of  a side. 

Sect.  9.  The  plaintife  is  he  which  mooveth  the  question. 

The  defendant  is  he  against  whom  the  question  is  mooved. 

All  persons  both  male  and  female  may  compromise,  but  such  as  are  pro- 
hibited by  nature  or  by  law. 

[Sections  10-20  omitted.  They  enumerate  the  impediments  to  com- 
promise: impediments  in  mind  naturall;  impediments  in  mind  casuall; 
impediments  in  bodie;  dumbnesse  and  deafnesse  naturall  and  casuall; 
impediments  legall;  subjection,  joynt  power;  coverture;  death  civill;  com- 
promise under  duress;  attainder  and  outlawrie;  joynt  power.] 

Sect.  21.  An  arbitrator  is  an  extraordinarie  judge  which  is  chosen,  and 
hath  power  to  judge,  given  to  him  by  the  only  mutual  consent,  wil  com- 
promise and  election  of  privat  persons  striving,  to  the  end  they  may  decide 
their  controversies  who  because  the  controversie  is  committed  to  his  pleas- 
ure and  arbitrement,  is  termed  an  arbitrator,  and  for  that  it  is  done  by 
the  mutual  promise  or  compromise  of  the  parties,  he  is  called  Compromiss 
judex.  Or  a Judge  having  cognizance  by  the  compromise  of  the  parties; 
his  power  is  larger  than  the  power  of  any  ordinarie  or  other  extraordinarie 

776 


APPENDIX  TO  CHAPTER  V 


777 


Judge  appointed  by  a magistrate,  for  an  Arbitrator  hath  power  to  judge 
according  to  the  compromise  after  his  owne  mind,  as  well  of  the  fact  as  of 
the  law,  not  observing  the  formse  of  Law,  but  the  other  Judges  are  tyed 
to  a prescript  forme  limitted  to  them  by  the  law  or  magistrat,  of  which 
they  be  onely  executors.  For  which  cause  Tully  saith  well,  AUvd  est  indicium, 
aliud  arbitrium;  nam  indicium  est  pecuniae  certae,  arbitrium  incerte;  ad 
indicium  hoc  modo  venimus,  ut  tota  litem  aut  abtineamus,  aut  amittamus; 
at  arbitrium  hoc  modo  adimus,  ut  neq:  nihil  neq;  tantum  quant  postulamus 
consequamur;  whence  springeth  this  old  saying.  He  that  putteth  his  coat 
to  daying  is  like  to  loose  a quarter. 

Sect.  22.  Seeing  then  the  power  of  Arbitrators  is  such,  and  so  great  and 
uncontrollable,  wariuesse  must  be  used  iu  the  choice  of  them.  In  which  two 
things  seeme  necessarie  to  be  regarded,  namely  that  the  arbitrators  bee 
sufficient  and  indifferent. 

Sect.  23.  Touching  their  sufficiencie,  such  persons  are  to  be  elected  as 
have  sufficient  skill  of  the  matter  compromitted,  and  have  neither  legall 
nor  naturall  impediments  to  give  an  upright  sentence.  Natural!  impedi- 
ments be  through  defect  of  mind  or  bodie,  natural  impediments  through 
defect  of  mind  be  infancie,  (for  infants  by  reason  of  their  tenderness  of 
yeares,  want  discretion  to  mannage  themselves  and  their  own  affairs)  mad- 
nesse,  and  Ideocie,  for  they  who  are  maimed  with  these  blemishes,  are 
utterly  void  of  understanding.  And  although  I have  read  some  examples 
of  sage  sentences  given  by  fooles,  yet  dare  I not  advise  my  friends  to  expect 
alwaies  the  like  at  their  hands. 

Sect.  24.  A fooles  arbitrement : That  an  himgrie  beggar  espying  daintie 
cheare  in  cookes  shop,  hasted  thither,  and  being  set  downe  did  eat  a small 
piece  of  his  owne  bread,  and  incontinently  received  such  wonderful  com- 
fort by  the  sweet  smell  of  the  cooks  cates  and  sauces,  whereof  he  tasted 
no  bit,  that  he  confessed  his  eager  stomack  was  as  well  satisfied  therewith, 
and  had  as  good  a repast  as  if  he  had  iudeed  stuffed  his  panch  with  the  best 
cheere  there;  which  the  Cooke  hearing,  strait  wais  with  a stem  coxmtenance 
bids  the  poore  caitife  pay  for  his  breakfast,  whereat  the  simple  guest  was 
mightily  amased,  and  the  craftie  cooke  so  much  the  more  earnest;  in  so 
much  as  this  poore  man  and  the  cooke  were  content  therein  to  abide  the 
ward  of  him  that  should  next  passe  by:  no  sooner  was  the  submission  made, 
but  thither  commeth  a most  notorious  naturall  foole,  to  whom  as  their 
Judge  they  rehearsed  the  matter;  which  being  heard,  the  Ideot  caused 
the  poore  man  to  put  so  much  monie  betweene  two  basons  as  the  covetous 
cooke  exacted,  and  to  shake  them  in  the  cooks  hearing:  which  done,  this 
Arbitrator  awarded,  that  as  the  cooke  had  fed  the  poore  man  with  the 
onely  smell  of  his  cates,  so  the  poore  man  should  pay  him  therefore  with  the 
only  sound  of  his  coine,  which  sentence  was  highly  approoved  of  the  hearers. 

Sect.  25.  A simple  Magistrates  Arbitrement:  Not  much  unlike  to  this 
is  that  which  is  reported  of  a covetous  Churle,  who  sorrowed  extreamly  for 
that  he  had  lost  a purse  with  one  and  twentie  Angells  in  it.  But  an  honest 
man  having  found  the  same,  of  meere  conscience  delivered  it  to  the  same 
churle,  who  not  once  thanking  him  that  was  the  bringer,  fell  to  account 
his  coin,  and  finding  onely  twentie  Angells  in  the  purse,  with  great  rigour 


778 


APPENDIX 


exacted  the  odde  Angell;  and  because  the  honest  man  denied  the  finding 
thereof,  hee  convented  him  before  a Magistrate  of  a Corporation,  whose 
wealth  and  authoritie  far  exceeded  his  wit  (as  in  such  places  commonly 
happeneth,  for  that  affection  and  simplicitie  be  their  ordinarie  electors). 
The  plaintife  sweareth,  there  were  one  and  twentie  angels  in  the  purse 
which  he  lost;  the  Defendant,  that  there  were  onely  twentie  in  that  which 
hee  foimd.  Whereupon  the  Magistrate  pronounced,  that  the  purse  found 
was  not  the  plaintife’s,  and  therefore  adjudged  him  to  restore  unto  the 
defendant  the  purse  with  twentie  Angells,  leaving  the  plaintife  to  good 
fortune  for  the  finding  againe  of  his  purse  with  one  and  twentie  angels, 
I thinke  a man  may  trie  a thousand  fooles  in  the  like  cases,  before  hee 
receive  the  like  sentence. 

Sect.  26.  The  defects  of  the  bodie  hindring  judgement,  are  infirmities,  by 
which  the  principall  sences  necessarie  for  the  apprehension  of  knowledge 
or  impaired  as  by  deafnesse,  dumbnesse,  and  blindnesse. 

Sect.  27.  And  for  indifferencie,  it  is  good  that  the  Arbitrators  be  void 
of  malice  and  favour  to  either  of  the  parties,  that  they  be  not  notorious  by 
outlawrie,  excommunication,  or  suspected  of  any  other  notorious  crime, 
that  they  be  neither  irreligious  nor  covetous:  For  albeit,  as  it  is  said,  an 
Arbitrator  hath  herein  absolute  power,  yet  ought  his  judgement  or  censure 
to  be  sincere  and  incorrupt,  according  to  right  and  equitie,  without  malice, 
flatterie,  and  every  other  vicious  affection  or  perturbation  which  may  in  any 
sort  lead  him  away  from  the  right  of  justice  and  equitie. 

Hitherto  of  persons  in  submission 

Sect.  28.  The  question  which  containeth  the  matter  of  the  arbitrement 
followeth. 

The  Question  is  a thing  in  controversie  declared  to  the  Judge  or  Arbi- 
trator, to  the  end  it  may  be  him  be  decided. 

Sect.  29.  And  everie  question  is  either  about  the  fact,  or  about  right. 

Sect.  30.  A Question  of  the  fact  is,  when  such  a fact  is  enquired  of  as 
doubtfull. 

Sect.  31.  The  question  of  right  is  when  the  fact  being  known,  it  is  yet 
doubtfull  how  much  is  thereby  growne  right  and  due  to  each  partie  by  Law. 

Sect.  32.  And  in  everie  question  hereupon  arising,  it  is  to  be  considered 
whether  the  thing  in  question  be  arbitrable  or  no:  for  in  vaine  it  is  to  com- 
promit  things  not  arbitrable.  Let  us  therefore  see  what  things  be  arbi- 
trable, and  what  not. 

[Sect.  33.  states  “What  things  are  arbitrable  and  what  not,”  the  former 
being  “things  and  actions  personall  incertain,”  and  the  latter  being  “chat- 
tels reall  or  mixt,  annuities,  freeholds,  debt  upon  arrerages  of  account 
before  Auditors,  things  as  were  not  in  rerum  natura  at  the  time  of  the  sub- 
mission though  they  happen  to  bee  before  the  award  made,  criminal 
offences,  and  matrimonial  causes.”] 

Sect.  34.  Now  that  wee  have  set  forth  the  persons  and  things  necessarie 


APPENDIX  TO  CHAPTER  V 


779 


in  every  compromise,  it  is  good  to  consider  such  other  circumstances  as  be 
requisite  in  the  same. 

Three  things  therefore  beside  the  persons  and  things  are  meet  to  be 
observed  in  every  compromise. 

First,  that  every  compromise  be  made  by  writing  with  the  parties,  cove- 
nants, or  bonds,  sufficient  to  bind  their  heirs  and  executors  to  performe  the 
award  which  shall  thereupon  be  made,  that  both  the  arbitrators  may  know 
their  power,  and  the  parties  how  far  they  are  subject  to  their  sentence; 
and  also  lest  their  labour  and  judgement  therein  should  be  frustrate  for 
want  of  means  to  compell  the  same  to  be  executed. 

Sect.  35.  Secondly,  it  is  behovefull  that  the  verie  compromise  arme  the 
Arbitrators  with  sufficient  authoritie  to  doe  all  things  necessarie  for  the 
ending  of  the  controversies,  as  to  appoint  times  and  places  for  their  meeting, 
to  examin  and  decide  the  matter  compromitted,  and  to  bring  the  parties 
with  their  proofs,  evidences,  and  witnesses  thither  together  before  them, 
and  to  punish  the  persons  defective,  and  to  expound  and  correct  such  doubt- 
full  sentences  and  questions  as  may  arise  upon  their  award  incovenient 
to  either  parties,  contrary  to  equitie  and  the  arbitrators  good  meaning; 
which  inconveniences  could  not  by  them  be  foreseene  at  the  making  of 
the  award,  as  it  oftentimes  hapneth;  for  temporis  filia  veritas,  truth  is  the 
daughter  of  time. 

Sect.  36.  Thirdly,  that  by  the  compromise  convenient  time  and  place  bee 
limitted  for  the  yeelding  up  of  their  award  to  the  parties  or  their  atturnies, 
deputies  or  assignes,  lest  the  parties  should  otherwise  bee  long  lingered  with 
vaine  hope  of  an  endlesse  end,  and  that  the  Arbitratours  may  before  the 
set  time  finis  their  award;  for  whatsoever  they  doe  arbitrate  after  the  time 
appointed  is  void. 

And  it  is  al  void  that  is  not  contained  in  the  submission,  or  necessarily 
depending  thereupon,  as  shal  more  largely  appeare  when  we  come  to  the 
doctrine  of  arbitrements. 

The  instrument  of  compromise  or  submission  may  be  made  in  forme 
following;  ^ 

[Sect.  37,  38  39  and  40  contain,  respectively,  form  of  compromise  or  sub- 
mission, with  covenants  to  perform  the  same,  of  binding  the  parties  to 
perform  the  award,  the  condition  of  an  obligation  to  perform  an  award, 
and  the  condition  to  perform  an  award  of  lands.] 

Sect.  41.  An  arbitrator  chosen  cannot  grant,  or  assigne  over  his  authori- 
tie of  arbitration  to  any  other,  because  it  is  but  a nude  power,  which  is  not  to 
be  granted  over:  notwithstanding  the  opinion  in  4 Ed.  3.20  to  the  con- 
trarie.  Neither  doth  the  submission  extend  to  give  the  arbitrators  power 
to  elect  others. 

[Sect.  42  discusses  “Whether  the  Compromittors  may  discharge  the 
Arbitrators,  or  no.”] 

Sec.  43.  An  arbitrement,  or  award  therefore,  arbitramentum,  laudum, 


780 


APPENDIX 


arbitratus,  Libr.  intration  debt  in  arbitr.  2 et  3,  is  nothing  else  but  the  very 
doome,  order,  and  decree  pronounced  by  arbitrators  upon  the  controvesie 
for  the  ending  whereof  they  were  chosen  by  the  striving  parties. 

Sect.  44.  In  the  forme  of  every  Arbitrement,  five  things  are  specially  to 
be  regarded. 

First,  that  it  be  made  according  to  the  verie  submission  or  compromise 
touching  the  things  compromitted,  and  every  other  circumstance,  as  is 
said  .... 

Secondly,  that  it  be  a finall  end  of  the  controversies  compromitted. 

Thirdly,  that  it  appoint  either  partie  to  give  or  doe  unto  the  other  some 
thing  beneficiall  in  appearance  at  the  least. 

Fourthly,  that  the  performance  thereof  be  possible. 

Fiftly,  that  there  be  a meanes  how  either  party  may  by  law  attaine  unto 
that  which  is  awarded  unto  him. 

For  if  it  faile  in  any  of  these  points,  then  is  the  whole  arbitrement  void 
and  of  none  effect,  as  it  doth  manifestly  appeare  by  these  speciall  cases 
following  .... 

[Examples  of  special  cases  omitted.  Sections  45,  46  and  47  contain 
forms  of  arbitrements,  which  are  omitted.] 

Sect.  48.  And  when  the  Arbitrators  have  made  their  award,  according 
to  the  submission,  albeit  perchance  they  be  not  bound  to  give  notice  thereof 
to  the  parties,  yet  it  seemeth  verie  requisite,  that  they  should  in  due  time, 
before  that  either  partie  be  to  performe  any  part  thereof,  notifie  the  same 
imto  them,  lest  otherwise  they  might  break  their  bonds  or  covenants  in  that 
behalfe  (if  any  such  be)  before  they  know  the  same.  Notwithstanding, 
that  the  booke  in  8.E.4.1.&  9.  be  doubtful!  in  that  point. 

Sect.  49.  And  thus,  by  that  which  hath  bin  discoursed,  it  sufficiently 
appeareth  (as  we  think)  that  the  scope  and  end  of  Arbitrements,  and  other 
Judgements,  is  all  one;  And  chiefly,  the  finall  determination  of  strife,  suit, 
and  controversie.  And  so  consequently  their  effects  be  almost  equall. 
But  the  Lawes  seeme  more  favourable  to  Arbitrements  than  other  Judge- 
ments, insomuch,  as  by  Arbitrators  the  strict  course  & tedious  ceremonies 
of  Law  suites  (which  are  most  commonly  wont  to  wearie  suiters,  and  picke 
their  purses)  are  cut  off,  and  shorter  decisions  by  them  made,  with  little 
or  no  cost  at  all. 


APPENDIX  TO  CHAPTER  VI 


1.  ELEMENTS  FOR  THE  ELABORATION  OF  A CON- 
VENTION TO  BE  CONCLUDED  BY  THE  POWERS 
PARTICIPATING  IN  THE  HAGUE  CONFERENCE  PRE- 
SENTED BY  THE  RUSSIAN  DELEGATION  OF  1899 

A.  GOOD  OFFICES  AMD  MEDIATION 

Article  1 

In  order  to  prevent,  as  far  as  possible,  recourse  to  force  in 
international  relations,  the  Signatory  Powers  are  agreed  to 
employ  every  effort  to  bring  about  by  pacific  means  the  solu- 
tion of  conflicts  which  may  arise  among  them. 

Article  2 

In  consequence  the  Signatory  Powers  are  decided,  in  the 
event  of  serious  disagreement  or  conflict,  before  appealing  to 
arms,  to  have  recourse,  so  far  as  circumstances  will  permit,  to 
the  good  offices  or  mediation  of  one  or  more  friendly  Powers. 

Article  3 

In  the  event  of  mediation  being  spontaneously  accepted  by 
States  in  conflict,  the  aim  of  the  mediatory  Government  con- 
sists in  endeavoring  to  bring  about  a conciliation  between  the 
States. 

Article  4 

The  role  of  the  mediatory  Government  ceases  from  the 
moment  when  the  compromise  proposed  by  it,  or  the  bases  of 
a friendly  agreement  which  it  may  have  suggested,  shall  not 
have  been  accepted  by  the  States  in  conflict. 

Article  5 

Should  the  Powers  consider  it  advisable,  in  the  event  of  a 
serious  disagreement  or  conflict  between  civilized  States  regard- 
ing questions  of  political  interest,  the  Powers  not  implicated  in 

781 


782 


APPENDIX 


the  conflict  shall  offer  of  their  own  initiative,  so  far  as  circum- 
stances are  favorable,  their  good  offices  or  their  mediation  to 
the  disputing  States  in  order  to  remove  the  difference  that  has 
arisen  by  proposing  an  amicable  solution  which,  without  affect- 
ing the  interests  of  other  States,  shall  be  of  a conciliatory  nature 
in  the  best  interests  of  the  parties  in  dispute. 

Article  6 

It  remains  well  understood  that  mediation  and  the  employ- 
ment of  good  offices,  either  at  the  instance  of  the  parties  in  dis- 
pute or  of  neutral  Powers,  shall  bear  strictly  the  character  of 
friendly  counsel  and  in  no  way  of  compulsory  force.  ^ 

(a)  EXPLANATORY  NOTE  RELATING  TO  ARTICLE  FIVE  OF  THE 
RUSSIAN  project) 

The  Conference  which  is  about  to  meet  at  The  Hague  is 
essentially  distinguished  from  those  which  were  held  at  Geneva 
(in  1864),  at  St.  Petersburg  (in  1868),  and  at  Brussels  (1874). 

The  purpose  of  these  first  conferences  was  to  humanize  war 
when  it  is  once  declared,  whereas  the  meeting  to  be  held  at 
The  Hague  will  seek  above  all  the  means  of  preventing  the 
very  declaration  of  war.  The  Conference  of  The  Hague  will 
therefore  be  a peace  conference  in  the  most  absolute  meaning 
of  the  words. 

The  practice  of  the  Law  of  Nations  has  elaborated  the  whole 
series  of  means  tending  to  prevent  war  by  means  of  the  specific 
settlement  of  international  disputes,  among  which  may  be 
more  particularly  counted  good  offices,  mediation,  and  arbitra- 
tion. It  seems  natural  enough  that  the  Conference  should 
occupy  itself  with  the  perfecting  of  the  guarantees  and  means 
already  existing  for  the  insuring  of  permanent  peace  among 
nations,  instead  of  seeking  new  means  which  have  not  been 
tested  and  sanctioned  by  practice.  In  this  way  the  Conference 
will  have  to  pay  particular  attention  to  the  “good  offices” 
and  the  “mediation”  of  third  parties,  that  is,  of  Powers  not 
implicated  in  the  presumed  conflict. 


* Conference  Internationale  de  la  Paix,  1899,  part  I,  pp.  119-120. 


APPENDIX  TO  CHAPTER  VI 


783 


Mediation  should,  without  any  doubt  and  by  its  very  nature, 
be  ranked  among  the  most  useful  and  most  practical  means  of 
action  of  the  Law  of  Nations,  being  a necessary  consequence  of 
that  real  community  of  material  and  moral  interests  which 
creates  an  international  union  among  the  various  nations, 
mediation  must  inevitably  acquire  an  ever-increasing  importance 
and  value  as  nations  come  closer  together,  and  as  their  interna- 
tional interests  develop.  The  advantage  which  is  likely  to  be 
possessed  by  mediation,  if  it  is  compared  with  the  other  means 
employed  to  settle  international  disputes,  is  above  all  the 
remarkable  elasticity  of  its  actions,  the  facility  with  which  it 
adapts  itself  to  the  peculiar  circumstances  of  every  given  case, 
and  the  variety  of  forms  which  it  offers  owing  to  this  facility. 
Appeahng  to  the  free  consent  of  the  parties,  mediation  does  not 
in  any  way  affect  the  principle  of  their  sovereignty,  nor  of  the 
liberty  and  independence  of  nations.  It  exerts  an  influence 
on  their  free  judgment,  without  ever  disputing  it  or  questioning 
it. 

There  is  no  doubt  but  that  arbitration  is,  generally  speaking, 
a more  effective  and  radical  means  than  mediation,  but  on  the 
other  hand,  arbitration  being  a means  of  action  of  a legal  nature, 
its  application  is  essentially  and  even  exclusively  restricted  to 
cases  in  which  there  is  a conflict  of  international  laws,  whereas 
mediation,  being  a means  of  a political  character,  is  equally 
applicable  to  conflicts  of  interest,  which  most  often  threaten 
the  peace  between  nations.  Finally,  it  is  equally  essential  to 
note  that  mediation  is  distinguished  from  other  similar  means 
of  action  by  surprising  simplicity  of  application  which  requires 
no  preliminary  preparation.  This  instrument  of  the  daily 
practice  of  diplomacy,  handled  with  tact  and  skill  and  directed 
by  a sincere  desire  to  serve  the  work  of  peace,  appears  destined 
to  play  a prominent  and  beneficent  rule  in  the  future. 

Nevertheless,  mediation  has  hitherto  played  a most  modest 
part  in  the  settlement  of  international  controversies.  The  truth 
of  this  observation  is  verified  even  by  the  history  of  the  most 
recent  conflicts. 

If  we  seek  the  reason  of  this  fact,  we  must  first  of  all  con- 
sider how  unsatisfactory  the  very  question  of  mediation  appears 
in  theory  as  well  as  in  the  practice  of  the  Law  of  Nations. 

According  to  Article  VIII  of  the  Treaty  of  Paris,  the  Sublime 


784 


APPENDIX 


Porte  as  well  as  the  other  powers  signing  this  treaty,  are  obliged 
to  submit  all  disagreements  arising  between  any  of  them  to  the 
mediation  of  the  other  powers,  for  the  sake  of  preventing  the 
use  of  force. 

Giving  a more  general  scope  to  this  idea.  Article  XXIII  of 
the  protocol  of  the  Congress  of  Paris,  inserted  at  the  suggestion 
of  Lord  Clarendon,  the  British  plenipotentiary,  expresses  the 
hope  that  nations  between  which  serious  disagreements  arise 
may  request  the  good  offices  of  a friendly  power  as  far  as  cir- 
cumstances permit,  rather  than  to  have  recourse  to  arms. 
Similarly,  at  the  African  Conference,  held  at  Berlin,  in  1885, 
the  powers  mutually  pledged  themselves  to  have  recourse  first 
of  all  to  the  mediation  of  one  or  more  neutral  nations  incase 
disagreements  should  arise  among  them  concerning  the  Congo 
and  its  basin. 

The  stipulations  cited  above  are  inspired  by  the  same  thought, 
expressed  in  practically  identical  terms.  They  compel  all  the 
nations  concerned  in  the  controversy  to  ask  mediation,  but 
they  do  not  mention  the  duty  of  the  neutral  powers  to  propose 
it.  From  this  standpoint,  mediation  would  impose  duties  on 
the  nations  directly  concerned  but  would  impose  none  on  the 
neutral  nations.  This  character  of  mediation,  very  irregular 
from  a theoretical  standpoint,  has  besides  the  disadvantage  of 
rendering  it  incapable  of  realization  from  a practical  stand- 
point. A request  for  mediation  necessarily  presupposes  a 
previous  agreement  among  the  nations  concerned  with  regard 
to  the  necessity  and  the  appropriateness  of  mediation.  Now, 
such  an  agreement  is  not  always  possible  during  the  ardor  of  a 
conflict  between  diametrically  opposed  interests.  At  all  events, 
there  can  be  no  question  of  making  it  compulsory  for  nations 
to  ask  mediation  when  their  interests  are  at  stake,  and  this 
especially  for  the  reason  that  such  a request  requires  an  agree- 
ment between  minds  which  are  opposed  and  a mutual  consent 
of  the  parties  regarding  the  choice  of  the  mediator. 

The  treaties,  unfortunately  not  very  numerous,  which  render 
it  compulsory  to  ask  for  arbitration,  at  the  same  time  regulate, 
in  most  cases  beforehand,  the  organization  of  the  court  called 
upon  to  render  the  award,  such  organization  not  depending  on 


APPENDIX  TO  CHAPTEE  VI 


785 


the  consent  or  nonconsent  of  the  interested  parties.*  It  goes 
without  saying  that  there  can  be  no  question  in  treaties  of  the 
compulsory  determination  for  the  parties  of  the  choice  of  a 
mediator,  the  counsels  of  whom  can  have  but  a moral  force, 
determined  by  the  degree  of  respect  and  confidence  which  he 
inspires  in  the  interested  parties.  The  appointment  of  the 
mediators  must  necessarily  be  made  by  consent  of  the  parties. 
As  this  consent  depends  absolutely  on  their  willingness  and  may 
even  be  impossible  of  realization  even  when  this  willingness  is 
shown,  it  follows  that  we  should  not  consider  it  compulsory 
on  the  nations  directly  interested  to  ask  for  mediation.  Even 
if  treaties  impose  such  a duty  on  nations,  in  case  of  contro- 
versy, such  a duty  would  as  a general  rule  remain  a dead  letter, 
for  conventions  can  not  compel  nations  to  choose  any  particu- 
lar arbitrator  in  spite  of  everything. 

This  opinion  is  confirmed  by  the  history  of  international  rela- 
tions since  the  time  of  the  Congress  of  Paris  in  1856.  Thus, 
during  the  last  forty  years,  there  have  been  several  cases  in 
which  neutral  nations,  in  pursuance  to  Article  XXIII  of  the 
protocol  of  the  Congress  of  Paris,  offered  their  mediation  and 
good  offices  to  nations  at  variance;  but  there  has  not  been  a 
single  case  in  which  nations  at  variance  have  requested  the 
I mediation  of  neutral  powers.  Last  year,  at  the  time  of  the 
dispute  between  France  and  England  regarding  Fachoda,  neither 
of  these  powers  thought  of  having  recourse  to  the  stipulations 
established  by  the  Berlin  Conference  of  1885  or  asked  the 
mediation  of  a third  Power.  Other  examples  of  a similar 
significance  might  be  quoted. 

As  regards  the  obligation  of  neutral  nations  to  offer  their 
mediation  to  nations  at  variance,  not  having  been  established 
, by  treaties,  it  is  not  recognized  or  observed  by  any  one.  Some 
authors  have  gone  so  far  as  to  assert  in  theory  that  neutral 
nations  are  not  only  not  obliged  but  do  not  even  have  a right 
to  offer  their  mediation  to  nations  in  dispute.  Bluntschli  and 
Heffter  considered  mediation  as  a dangerous  and  injurious 
interference  in  the  affairs  of  others.  Hautefeuille  and  Galiani 
advised  nations  carefully  to  refrain  from  mediation  for  fear  of 

' See,  for  example.  Article  i6  of  the  Universal  Postal  Convention 
signed  at  Berne,  1874,  and  Article  8 of  the  Treaty  signed  at  Washington, 
1890. 


786 


APPENDIX 


losing  the  friendship  of  one  of  the  parties  without  sufficient 
reason.  In  fact  we  may  cite  a number  of  actual  instances  of 
serious  conflicts  which  subsequently  ended  in  war  and  which 
did  not  suggest  to  neutrals  the  least  attempt  to  offer  their 
mediation.  However,  offers  of  this  kind,  especially  if  they 
had  come  simultaneously  from  several  powers,  might  have 
prevented  wars  whose  consequences  have  been  incalculable  to 
all  the  nations  constituting  the  international  commonwealth. 

In  many  cases  the  offer  of  mediation  is  made  so  late  and  in 
such  uncertain  terms  that  it  can  not  avert  war.  Thus,  for 
instance,  the  French  Government  refused  the  good  offices  of 
England  in  1870  when  the  conflict  between  France  and  Germany 
broke  out.  Finally,  it  often  happens  that  mediation  is  offered 
not  for  the  purpose  of  preventing  war  but  of  putting  a stop  to 
it. 

Many  recent  wars,  such  as  the  Austro-Prussian  War  of  1866, 
that  between  Chili,  Peru,  and  Bolivia,  in  1882,  that  between 
Greece  and  Turkey  in  1897,  and  others  still,  have  been  termi- 
nated by  the  mediation  of  neutral  powers.  If  these  same  powers 
had  used  all  the  energy  to  prevent  these  wars  that  they  exerted 
in  putting  them  down,  it  is  possible  that  Europe  might  have 
been  spared  more  than  one  armed  conflict. 

After  what  has  just  been  said,  it  is  not  difficult  to  point  out 
the  course  to  be  followed  by  the  Conference  in  order  to 
emphasize  the  importance  and  increase  the  scope  of  mediation 
by  making  it  a permanent  and  necessary  institution  of  inter- 
national law.  Innumerable  and  mutually  involved  interests 
envelop  civilized  nations  with  a close  and  inextricable  network. 
The  principle  of  isolation,  which  recently  still  dominated  the 
political  existence  of  every  nation,  has  now  given  place  to  a 
close  solidarity  of  interests,  and  to  a common  participation 
in  the  moral  and  material  benefits  of  civihzation. 

Modern  nations  can  not  remain  indifferent  to  international 
conflicts,  no  matter  where  they  may  arise  or  who  may  be  the 
parties  at  variance.  At  the  present  time  war,  even  when 
occurring  between  two  nations,  appears  as  an  international 
nuisance.  In  order  to  combat  this  nuisance,  means  are  required 
which  have  a universal  application.  The  efforts  of  all  nations 
and  of  every  nation  individually  must  be  combined. 

Looking  at  the  matter  in  this  light,  every  nation  should  be 


APPENDIX  TO  CHAPTER  VI 


787 


obliged  to  use  its  efforts  and  to  put  into  operation  all  the  means 
at  its  disposal  for  the  purpose  of  preventing  conflicts  which  are 
likely  to  threaten  the  peace,  while  respecting,  of  course,  the 
independence  of  other  sovereign  nations.  In  particular,  every 
nation  should,  as  far  as  circumstances  permit,  offer  its  mediation 
to  the  nations  at  variance  as  soon  as  there  is  the  least  hope  of 
preventing  the  dreadful  evils  of  war  by  this  means. 

It  is  because  they  realize  the  serious  consequences  which  a 
certain  outcome  of  the  war  may  have  on  the  international  com- 
monwealth that  neutral  nations  usually  offer  their  mediation 
to  the  belligerents  for  the  purpose  of  concluding  peace.  Media- 
tion of  this  kind,  being  generally  made  by  several  nations  in 
common,  often  renders  it  impossible  for  the  victor  to  derive 
from  his  victory  the  advantages  for  which  the  war  was  under- 
taken. 

There  is  no  doubt  but  that  neutral  nations  are  concerned  not 
only  in  the  results  of  the  war  but  also  in  the  fact  that  it  has 
taken  place.  It  follows  that  the  interests  of  neutral  nations 
require  that  mediation  be  offered  by  them  not  only  in  order 
to  stop  a war  already  begun  but  also,  and  more  especially,  in 
order  to  prevent  its  breaking  out.  This  is  really  also  in  the 
interest  of  the  nations  at  variance,  especially  in  view  of  the  fact 
that  every  belligerent  nation,  upon  war  breaking  out,  is  inter- 
ested nowadays  in  knowing  the  attitude  of  the  neutral  powers 
with  regard  to  the  conflict  so  that  they  may  be  able  to  calculate 
and  gauge  with  precision  not  only  the  power  of  resistance  of 
their  adversary  during  the  war,  but  also  the  power  which  will 
be  exerted  by  the  neutral  powers  when  peace  is  concluded. 

The  theory  of  international  law,  as  expounded  by  the  most 
acknowledged  authorities  on  the  subject,  such  as  Travers- 
Twiss,  Philimore,  Pradier-Foder4,  de  Martens  and  others,  has 
long  regarded  mediation  as  the  duty  of  neutral  nations.  The 
peace  conference  may  deem  it  useful  to  proclaim  this  duty  to 
all  humanity,  in  order  to  invest  mediation  with  all  the  author- 
ity of  a powerful  instrument  of  peace.‘ 


Conference  Internationale  de  la  Paix,  1899,  part  I,  pp.  121-124. 


788 


APPENDIX 


B.  INTERNATIONAL  COMMISSIONS  OF  INQUIRY 

Article  14 

In  cases  in  which  divergences  of  views  occur  between  the 
Signatory  States  in  connection  with  local  circumstances  giving 
rise  to  litigation  of  an  international  character  which  cannot  be 
settled  by  the  ordinary  diplomatic  means,  but  in  which  neither 
the  honor  nor  the  vital  interests  of  these  States  are  engaged, 
the  Governments  interested  agree  to  institute  an  International 
Commission  of  Inquiry  in  order  to  arrive  at  the  causes  of  the 
disagreement  and  to  clear  up  on  the  spot,  by  an  impartial  and 
conscientious  examination,  all  questions  of  fact. 

Article  15 

These  international  Commissions  shall  be  constituted  as 
follows;  Each  Government  interested  shall  appoint  two  mem- 
bers, and  the  four  members  united  shall  choose  a fifth  member 
who  shall  at  the  same  time  be  president  of  the  Commission.  If 
the  votes  shall  be  divided  for  the  choice  of  a president  the  two 
Governments  interested  shall  appeal  either  to  another  Govern- 
ment or  to  a third  party,  who  shall  appoint  the  president  of 
the  Commission. 

Article  16 

Governments  between  which  a grave  disagreement  or  con- 
flict shall  arise  in  the  circumstances  indicated  above,  shall 
engage  to  furnish  the  Commission  of  Inquiry  with  all  means 
and  facilities  necessary  for  a thorough  and  conscientious  study 
of  the  facts. 

Article  17 

The  International  Commission  of  Inquiry,  after  having 
acquainted  itself  with  the  circumstances  out  of  which  the  dis- 
agreement or  conflict  arose,  shall  submit  to  the  Governments 
interested  a report  signed  by  all  the  members  of  the  Commis- 
sion. 

Article  18 

The  report  of  the  Commission  of  Inquiry  shall  in  no  wise 
have  the  character  of  an  arbitration  judgment.  It  leaves  the 
Governments  in  conflict  at  full  liberty,  either  to  conclude  a 


APPENDIX  TO  CHAPTER  VI 


789 


friendly  arrangement  on  the  basis  of  the  said  report,  or  to  have 
recourse  to  Arbitration  by  concluding  an  agreement  ad  hoc, 
or  else  by  resorting  to  the  active  measures  allowable  in  the  mutual 
relations  between  nations.* 

C.  A DRAFT  CODE  OF  ARBITRATION,  PROPOSED  BY  THE 
RUSSIAN  DELEGATION. 

Article  1 

The  Signatory  Powers  have  approved  the  principles  and 
rules  below  mentioned  for  the  procedure  of  Arbitration  among 
nations,  save  for  the  modifications  which  may  be  introduced 
in  each  particular  case  by  mutual  agreement  by  the  Govern- 
ments in  dispute. 

Article  2 

The  States  interested,  having  accepted  Arbitration,  shall 
sign  a special  Act  (compromis),  in  which  are  clearly  set  forth 
the  questions  submitted  to  the  decision  of  the  Arbitrator,  and 
the  full  facts  and  the  considerations  of  law  connected  with 
them,  and  a formal  undertaking  shall  be  given  by  the  contract- 
ing parties  to  submit,  in  good  faith  and  without  subsequent 
appeal,  to  the  Arbitral  award  which  shall  be  pronounced. 

Article  3 

The  Arbitration  Conventions  thus  concluded  by  tbe  States 
concerned  with  their  full  consent  may  provide  for  Arbitration 
either  for  all  disputes  arising  between  them,  or  for  disputes  of 
a certain  fixed  category. 

Article  4 

The  Governments  interested  may  entrust  the  functions  of 
Arbitrator  to  the  Sovereign  or  chief  of  the  State  of  a third 
Power,  with  the  consent  of  this  last.  They  may  also  entrust 
these  functions  either  to  a single  person  selected  by  them  or  to 
an  Arbitration  Tribunal  appointed  for  the  purpose.  In  the 
latter  event,  and  in  view  of  the  importance  of  the  dispute,  the 
Arbitration  Tribunal  may  be  constituted  in  the  following 
manner:  Each  contracting  party  shall  choose  two  Arbitrators. 

* Conference  Internationale  de  la  Paix,  1899,  part  I,  p.  121. 


790 


APPENDIX 


These  Arbitrators  having  met,  shall  agree  upon  the  umpire, 
who  will  be  de  jure  the  president  of  the  Tribunal.  In  the  event 
of  a division  of  votes  the  disputing  Governments  will  appeal 
by  a common  accord  to  a third  Government  or  a third  person, 
who  will  appoint  the  umpire. 

Akticle  5 

If  the  disputing  parties  do  not  agree  on  the  choice  of  the 
third  Government  or  third  person,  mentioned  in  the  preceding 
article,  each  of  these  parties  shall  appoint  a Power  not  impli- 
cated in  the  dispute,  in  order  that  the  Power  thus  chosen  by 
the  disputing  parties  may  appoint  an  umpire  by  common 
agreement. 

Article  6 

The  incompetence  or  inadmissibility  of  one  only  of  the  above- 
mentioned  Arbitrators,  or  his  refusal  to  accept  the  office  of 
Arbitrator,  once  his  consent  has  been  given,  or  the  death  of 
an  Arbitrator,  invalidates  the  entire  Agreement  (compromis), 
except  in  the  case  where  these  circumstances  are  foreseen  and 
provided  for  by  common  agreement  between  the  contracting 
parties. 

Article  7 

The  Arbitration  Tribunal  shall  meet  at  a place  designated 
either  by  the  Contracting  States  or  by  the  members  of  the 
Tribunal.  The  meeting  place  can  only  be  changed  by  a fresh 
agreement  between  the  interested  Governments,  or,  in  case 
of  force  majeure,  on  the  initiative  of  the  Tribunal  itself. 

Article  8 

Disputing  States  have  the  right  to  appoint  delegates  or 
special  agents  attached  to  the  Tribunal  of  Arbitration,  and 
empowered  to  act  as  intermediaries  between  the  Tribunal  and 
the  Governments  interested.  Besides  these  agents  the  above- 
mentioned  Governments  are  authorized  to  nominate  councilors 
or  advocates  to  defend  their  rights  and  interests  before  the 
Tribunal  of  Arbitration. 

Article  9 

The  Tribunal  of  Arbitration  shall  decide  in  what  language  the 
deliberations  and  discussions  of  the  parties  shall  be  held. 


APPENDIX  TO  CHAPTER  VI 


791 


Article  10 

The  procedure  of  Arbitration  shall  generally  be  divided  into 
two  parts — namely,  preliminary  and  definitive,  the  first  consist- 
ing in  the  communication  to  the  members  of  the  Tribunal  by 
the  agents  of  the  Contracting  States,  of  all  the  documents  and 
arguments  printed  or  written  regarding  the  questions  in  dis- 
pute; and  the  second,  definitive  or  oral,  in  discussions  before 
the  Tribunal  of  Arbitration. 

Article  11 

On  the  conclusion  of  the  preliminary  procedure  the  dis- 
cussions before  the  Arbitration  Tribunal  will  begin  and  will 
be  directed  by  the  President.  Records  of  the  whole  proceed- 
ings will  be  made  by  secretaries  appointed  by  the  President  of 
the  Tribunal.  These  Records  will  alone  have  legal  force. 

Article  12 

The  preliminary  procedure  having  been  ended,  the  Arbitra- 
tion Tribunal  shall  have  the  right  to  reject  all  new  documents 
which  the  representatives  of  the  parties  may  desire  to  submit 
to  it. 

Article  13 

The  Arbitration  Tribunal,  nevertheless,  always  remains 
absolutely  free  to  take  into  consideration  new  documents  or 
records  of  which  the  delegates  or  councilors  of  the  Govern- 
ments in  dispute  have  taken  advantage  in  their  explanation 
before  the  Tribunal. 

The  latter  has  the  right  to  demand  the  production  of  these 
documents,  and  to  notify  them  to  the  opposing  party. 

Article  14 

The  Arbitration  Tribunal  has,  besides,  the  right  to  call  upon 
the  agents  of  the  Parties  to  submit  all  the  documents  or  explana- 
tions* which  it  requires. 


Article  15 

The  agents  and  councilors  of  the  Governments  in  dispute 
shall  be  authorized  to  lay  before  the  Tribunal  orally  all  the 


792 


APPENDIX 


explanations  and  proofs  in  support  of  the  cause  they  have  to 
defend. 

Article  16 

The  same  agents  and  councilors  also  have  the  right  to  lay 
before  the  Tribunal  motions  on  the  subjects  under  discussion. 
The  decisions  of  the  Tribunal  concerning  these  motions  are 
definitive,  and  cannot  give  rise  to  any  discussion. 

Article  17 

The  members  of  the  Arbitration  Tribunal  have  the  right  to 
put  questions  to  the  agents  or  councilors  of  the  Contracting 
Parties,  or  to  ask  for  enlightenment  on  doubtful  points.  Neither 
questions  submitted  nor  observations  made  by  members  of 
the  Tribunal  in  the  course  of  the  deliberations  shall  be  regarded 
as  an  expression  of  opinion  by  the  Tribunal  as  a whole  or  by 
the  individual  members  composing  it. 

Article  18 

The  Arbitration  Tribunal  is  alone  authorized  to  determine 
its  competence  by  the  interpretation  of  the  clauses  of  the  Agree- 
ment (compromis)  and  in  accordance  with  the  principles  of 
international  law,  with  due  consideration  for  any  special 
treaties  which  may  be  involved. 

Article  19 

The  Arbitration  Tribunal  has  the  right  to  establish  rules  of 
procedure,  and  to  determine  the  manner  and  periods  of  time 
in  which  each  party  is  to  present  its  documents,  and  to  decide 
on  the  interpretation  of  the  documents  produced  and  com- 
municated to  the  two  Parties. 

Article  20 

On  the  agents  and  councilors  of  the  litigant  Governments 
having  presented  all  the  explanations  and  proofs  in  defense  of 
their  respective  pleas,  the  President  of  the  Arbitration  Tribunal 
will  close  the  debates. 

Article  21 

The  deliberations  of  the  members  of  the  Tribunal  on  the 
ground  of  litigation  are  to  be  held  with  closed  doors.  Every 


APPENDIX  TO  CHAPTER  VI 


793 


decision,  whether  definitive  or  provisional,  is  taken  by  the 
majority  of  the  members  present.  The  refusal  of  a single 
member  of  the  Tribunal  to  take  part  in  the  voting  must  be 
stated  in  the  records. 

Article  22 

The  Arbitral  Award,  arrived  at  by  a majority  of  votes,  must 
be  drawn  up  in  writing  and  signed  by  each  of  the  members  of 
the  Arbitration  Tribunal.  Those  members  of  the  Tribunal 
who  are  in  the  minority  shall,  when  signing,  state  their  dis- 
agreement with  the  Award. 

Article  23 

The  Award  shall  be  solemnly  read  at  a public  sitting  of  the 
Tribunal  and  in  the  presence  of  the  agents  and  councilors  of 
the  Governments  in  dispute. 

Article  24 

The  Award,  duly  made  and  notified  to  the  agents  of  the 
Governments  in  dispute,  shall  decide,  definitely  and  without 
appeal,  the  dispute  between  the  Parties,  and  close  the  arbitra- 
tion proceedings  instituted  by  the  Agreement  (compromis). 

Article  25 

Each  Party  to  a dispute  will  defray  its  own  expenses  and 
half  the  expenses  of  the  Arbitration  Tribunal,  without  preju- 
dice to  the  decision  of  the  Tribunal  regarding  any  indemnity 
which  one  or  other  of  the  Parties  may  be  ordered  to  pay. 

Article  26 

The  Arbitral  Award  is  null  and  void  in  case  of  the  Reference 
{compromis)  being  invalid,  or  if  the  Tribunal  has  exceeded  its 
powers,  or  when  corruption  is  proved  on  the  part  of  one  of  the 
arbitrators. 

The  above  regulations  regarding  the  Arbitration  Tribunal, 
from  Section  7,  beginning  with  the  words,  “The  Arbitration 
Tribunal  shall  meet,”  apply  equally  to  cases  in  which  Arbitra- 
tion is  entrusted  to  a single  individual  chosen  by  the  Govern- 
ments interested.  In  a case  in  which  the  Sovereign  or  chief 
of  a State  gives  his  Award  personally  as  Arbitrator,  the  pro- 


794 


APPENDIX 


cedure  would  be  determined  by  the  Sovereign  or  the  chief  of  the 
State  himselfd 

D.  [RUSSIAN  PROPOSALS  CONCERNING  AN  ARBITRATION 

TRIBUNAL 

(o)  Articles  which  Might  Replace  Articles  I,  13. 

1.  With  a view  to  consolidate,  as  far  as  possible,  the  practice 
of  International  Arbitration,  the  Contracting  Powers  have 

agreed  to  form,  for  a period  of  years,  an  Arbitration 

Tribunal,  to  which  should  be  referred  the  cases  of  obligatory 
Arbitration  enumerated  in  Article  I,  10,  unless  the  interested 
Powers  agree  on  the  establishment  of  a special  Arbitration 
Tribunal  for  the  solution  of  the  dispute  that  has  arisen  between 
them. 

The  Powers  in  dispute  may  also  have  recourse  to  the  Tribu- 
nal referred  to  above  in  all  cases  of  optional  Arbitration,  if  a 
special  agreement  on  this  subject  be  arrived  at  between  them. 

It  is  understood  that  all  the  Powers,  without  excepting  the 
noncontracting  Powers,  or  those  which  have  made  reservations, 
may  submit  their  differences  to  this  Tribunal  by  addressing 
the  Permanent  Bureau,  provided  for  by  Article  — of  Appen- 
dix A. 

2.  The  organization  of  the  Arbitration  Tribunal  is  shown 
in  Appendix  A of  the  present  Article. 

The  organization  of  the  Arbitration  Tribunals  instituted  by 
special  agreements  between  the  Powers  in  dispute,  and  also 
the  rules  of  procedure  to  be  followed  during  the  examination  of 
the  case,  and  the  delivery  of  the  Arbitral  Award,  are  deter- 
mined in  Appendix  B (Code  of  Arbitration). 

The  arrangements  contained  in  this  latter  Appendix  may  be 
modified  by  a special  agreement  between  the  States  which  have 
recourse  to  Arbitration. 

(b)  Annex  to  the  Russian  Proposals 

In  case  of  the  acceptance  of  Articles  1 and  2,  it  would  be 
expedient: 

1.  To  draw  up  Appendix  A,  mentioned  in  the  Article. 

Conference  Internationale  de  la  Paix,  1899,  part  I,  pp.  129-132. 


APPENDIX  TO  CHAPTER  VI 


795 


2.  To  introduce  corresponding  modifications  into  the  Draft 
of  the  Arbitration  Code. 

(c)  Appendix  A. 

MENTIONED  IN  ADDITIONAL  ARTICLE  0)2  OF  THE  RUSSIAN 
PROPOSALS 

In  default  of  a Special  Convention  (compromis),  the  Arbitra- 
tion Tribunal  provided  for  by  Article  13  shall  be  constituted  on 
the  following  basis: 

1.  The  Contracting  Parties  establish  a Permanent  Tribunal 
for  the  settlement  of  international  disputes  which  shall  be 
referred  to  it  by  the  contending  Powers  by  virtue  of  Article 
13  of  the  present  Convention. 

2.  The  Conference  shall  designate,  for  the  period  which 
shall  elapse  before  the  meeting  of  a new  Conference,  five  Powers, 
in  order  that  each  of  them,  in  case  of  a request  for  Arbitration, 
may  appoint  a Judge,  either  from  the  number  of  their  subjects, 
or  outside  that  number. 

The  Judges  thus  appointed  constitute  the  Arbitration  Tri- 
bunal competent  for  the  case  that  has  arisen. 

3.  If  amongst  the  Powers  in  dispute  were  one  or  more 
Powers  not  represented  in  the  Arbitration  Tribunal,  in  virtue 
of  the  preceding  Article,  each,  of  the  two  Parties  in  dispute 
shall  have  the  right  to  have  itself  represented  in  it  by  a person 
of  its  choice  as  Judge,  having  the  same  rights  as  the  other 
members  of  the  said  Tribunal. 

4.  The  Tribunal  shall  from  amongst  its  members  choose  its 
President,  who,  in  case  of  an  equal  division  of  votes,  shall  have 
the  casting  vote. 

5.  A Permanent  Bureau  of  Arbitration  shall  be  appointed 
by  the  five  Powers  who  shall  be  designated  in  virtue  of  the  present 
Act  to  constitute  the  Arbitration  Tribunal.  They  shall  draw 
up  the  Regulations  of  this  Bureau,  appoint  its  employees,  pro- 
vide for  replacing  them  when  need  arises,  and  fix  their  emolu- 
ments. This  Bureau,  which  shall  be  located  at  The  Hague, 
shall  consist  of  a General  Secretary,  an  Assistant  Secretary,  a 
Recorder,  and  an  adequate  staff,  which  shall  be  appointed  by 
the  General  Secretary. 

6.  The  expenses  of  maintenance  of  this  Bureau  shall  be 


796 


APPENDIX 


divided  amongst  the  States  in  the  proportion  fixed  for  the  In- 
ternational Postal  Bureau. 

7.  The  Bureau  shall  annually  render  an  account  of  its  work 
to  the  five  Powers  who  have  appointed  it,  and  these  shall  com- 
municate the  Report  to  the  other  Powers. 

8.  The  Powers  between  whom  a dispute  has  arisen  shall 
apply  to  the  Bureau,  and  furnish  to  it  the  necessary  documents. 
The  Bureau  shall  advise  the  five  Powers  above  mentioned,  who 
shall  without  delay  form  the  Tribunal.  This  Tribunal  shall, 
as  a rule,  meet  at  The  Hague;  or  it  may  meet  in  some  other 
town,  if  an  agreement  to  that  effect  be  arrived  at  amongst  the 
interested  States. 

9.  During  the  time  that  the  Tribunal  is  at  work,  the  Bureau 
shall  serve  as  its  Secretariat.  It  shall  follow  the  Tribunal  in 
case  of  removal.  The  archives  of  the  International  Arbitra- 
tion shall  be  deposited  at  the  Bureau. 

10.  The  procedure  of  the  above  Tribunal  shall  be  governed 
by  the  rules  of  the  Code  of  Arbitration.^ 

2.  THE  BRITISH  ARBITRATION  PROPOSALS 
Permanent  Arbitration  Tribunal 

A.  SIR  JULIAN  PAUNCEFOTE’S  FIRST  PROPOSAL 
Article  1 

With  the  view  of  facilitating  an  immediate  recourse  to  Arbi- 
tration on  the  part  of  those  States  who  may  not  succeed  in 
settling  their  differences  by  diplomatic  means,  the  Signatory 
Powers  have  undertaken  to  organize  in  the  following  manner  a 
permanent  Tribunal  of  Arbitration,  accessible  at  all  times,  and 
governed  by  the  code  of  Arbitration  prescribed  in  this  Con- 
vention, so  far  as  it  may  be  applicable,  and  in  conformity  with 
stipulations  made  in  arrangements  decided  upon  between  the 
parties  in  litigation. 

Article  2 

To  this  effect  a central  office  will  be  established  permanently 
at  X,  where  the  archives  of  the  Tribunal  will  be  preserved,  and 
which  will  be  entrusted  with  the  conduct  of  its  official  business. 

' Conference  Internationale  de  la  Paix,  1899,  part  I.,  pp.  128-129. 


APPENDIX  TO  CHAPTER  VI 


797 


A permanent  Secretary,  an  Archivist,  and  sufficient  staff  will 
be  appointed  who  will  reside  on  the  spot.  The  office  will  be 
the  intermediary  for  communications  relative  to  the  meeting 
of  the  Tribunal  at  the  instance  of  the  parties  in  litigation. 

Article  3 

Each  Signatory  Power  will  transmit  to  the  others  the  names 
of  two  persons  of  its  nationality,  recognized  in  their  country  as 
jurists  or  publicists  of  merit,  enjoying  the  highest  reputation 
for  integrity,  disposed  to  accept  the  functions  of  Arbitrators, 
and  possessing  all  the  necessary  qualities.  Persons  thus  desig- 
nated will  be  Members  of  the  Tribunal,  and  will  be  inscribed  as 
such  in  the  central  office.  In  case  of  the  death  or  retirement  of 
a Member  of  the  Tribunal,  provision  will  be  made  for  his  being 
replaced  in  the  same  manner  as  for  his  nomination. 

Article  4 

The  Signatory  Powers,  desiring  to  apply  to  the  Tribunal  for 
the  pacific  settlement  of  differences  which  may  arise  amongst 
them,  will  notify  this  desire  to  the  Secretary  of  the  central  office, 
which  will  then  furnish  them  immediately  with  a list  of  the 
Members  of  the  Tribunal.  The  Powers  in  question  will  there- 
upon select  from  this  list  the  number  of  Arbitrators  agreed 
upon  in  the  arrangements.  They  will  have,  moreover,  the 
power  of  adding  Arbitrators  other  than  those  whose  names 
are  inscribed  in  the  list.  The  Arbitrators  thus  chosen  will  form 
the  Tribunal  for  the  Arbitration,  and  will  meet  on  the  date 
fixed  by  the  parties  in  litigation.  The  Tribunal  will  sit  generally 
at  X,  but  will  have  the  power  of  sitting  elsewhere,  and  of  chang- 
ing its  place  from  time  to  time,  according  to  circumstances,  as 
may  suit  its  convenience,  or  that  of  the  parties  in  litigation. 

Article  5 

Any  State,  although  not  a Signatory  Power,  will  be  able  to 
have  recourse  to  the  Tribunal  under  the  conditions  prescribed 
by  the  regulations. 

Article  6 

The  Government  X is  directed  to  install  at  X in  the  name  of 
the  Signatory  Powers,  as  soon  as  possible  after  the  ratification 


798 


APPENDIX 


of  this  Convention,  a permanent  Council  of  Administration 
composed  of  five  Members  and  one  Secretary.  It  will  be  the 
duty  of  the  Council  to  establish  and  organize  a central  ofl&ce, 
which  will  be  under  its  direction  and  control.  It  will  issue 
from  time  to  time  the  necessary  regulations  for  the  proper 
working  of  the  central  office,  and  will  also  settle  all  questions 
which  may  arise  concerning  the  working  of  the  Tribunal,  or 
which  may  be  submitted  to  it  by  the  central  bureau.  The 
Council  will  have  absolute  power  as  regards  the  nomination, 
the  suspension,  or  the  dismissal  of  all  functionaries  or  employees. 
It  will  fix  salaries  and  control  general  expenses.  The  Council 
will  elect  its  president,  who  will  have  a preponderating  voice. 
The  presence  of  three  Members  will  suffice  to  constitute  a 
quorum,  and  decisions  will  be  taken  by  a majority  of  votes. 
The  fees  of  the  Members  of  the  Council  will  be  fixed  by  agree- 
ment between  the  Signatory  Powers. 

Article  7 

The  Signatory  Powers  agree  to  contribute  in  equal  shares 
the  expenses  of  the  Administrative  Council  and  the  central 
office.  The  expenses  of  each  arbitration  will  be  chargeable  in 
equal  parts  to  the  States  in  litigation. 

B.  SIR  JULIAN  PAUNCEFOTE’S  NEW  PROPOSAL 
To  Replace  Article  6 

There  shall  be  constituted  at  The  Hague  a Permanent  Council, 
composed  of  the  Representatives  of  the  Signatory  Powers 
residing  in  that  city,  and  the  Minister  for  Foreign  Affairs  of  the 
Netherlands,  as  soon  as  possible  after  the  ratification  of  the 
present  Convention.  This  Council  shall  be  commissioned  to 
establish  and  organize  a Central  Bureau,  which  shall  remain 
under  its  direction  and  control.  It  shall  take  steps  to  establish 
the  Tribunal;  it  shall  issue  from  time  to  time  the  regulations 
necessary  for  the  proper  conduct  of  the  Central  Bureau.  Simi- 
larly it  shall  decide  all  questions  which  may  arise  relating  to 
working  of  the  Tribunal,  or  refer  them  to  the  Signatory  Powers. 
It  shall  have  absolute  power  as  to  the  appointment,  suspension 


APPENDIX  TO  CHAPTEE  VI 


799 


or  dismission  of  the  officers  and  employees  of  the  Central  Bureau. 
It  shall  fix  their  salaries  and  emoluments,  and  have  control  of 
the  general  expenditure.  The  presence  of  five  members  at  a 
meeting  duly  summoned  shall  constitute  a quorum,  and  the 
decisions  shall  be  taken  by  a majority  of  votes.^ 

3.  THE  AMERICAN  SCHEME 
Proposal  for  an  International  Tribunal 

Resolved,  That  in  order  to  aid  in  the  prevention  of  armed 
conflicts  by  pacific  means,  the  representatives  of  the  Sovereign 
Powers  assembled  together  in  this  Conference  be  and  they 
hereby  are  requested  to  propose  to  their  respective  Govern- 
ments a series  of  negotiations  for  the  adoption  of  a general 
Treaty,  having  for  its  object  the  following  plan,  with  such 
modifications  as  may  be  essential  to  secure  the  adhesion  of  at 
least  nine  Sovereign  Powers,  four  of  whom  at  least  shall  have 
been  signatories  of  the  Declaration  of  Paris,  the  German  Empire 
[ being  for  this  purpose  the  successor  of  Prussia,  and  the  Kingdom 
of  Italy  the  successor  of  Sardinia: 

Article  1 

' The  Tribunal  shall  be  composed  of  persons  nominated  on 
account  of  their  personal  integrity  and  learning  in  international 
law  by  a majority  of  the  members  of  the  highest  Court  at  the 
time  existing  in  each  of  the  adhering  States,  one  from  each 
i Sovereign  State  participating  in  the  Treaty,  and  shall  hold 

I office  until  their  successors  are  nominated  by  the  same  body 

and  duly  appointed. 

Article  2 

i The  Tribunal  shall  meet  for  organization  at  a time  and  place 
I to  be  agreed  upon  by  the  several  Governments,  but  not  later 
than  six  months  after  the  general  Treaty  shall  be  ratified  by 
nine  Powers  as  hereinbefore  proposed,  and  shall  organize  itself 
1 by  the  appointment  of  a permanent  clerk,  and  such  other 
officers  as  may  be  found  necessary,  but  without  conferring  any 
distinction  upon  its  own  members.  The  Tribunal  shall  be 
empowered  to  fix  its  place  of  session  and  to  change  the  same 

' Conf4rence  Internationale  de  la  Paix,  1899,  part  I,  pp.  134-136. 


800 


APPENDIX 


from  time  to  time  as  the  interests  of  justice  or  the  convenience 
of  the  litigants  may  seem  to  require,  and  to  fix  its  own  rules 
of  procedure. 

Article  3 

The  Tribunal  shall  be  of  a permanent  character,  and  shall 
be  always  open  for  the  filing  of  new  cases,  subject  to  its  own 
rules  of  procedure,  either  by  the  contracting  nations  or  by 
others  that  may  choose  to  submit  them,  and  all  cases  and 
counter-cases,  with  the  testimony  and  arguments  by  which 
they  are  to  be  supported  or  answered,  are  to  be  in  writing  or 
in  print.  All  cases,  counter-cases,  evidence,  arguments,  or 
opinions,  expressing  judgment,  are  to  be  accessible  after  the 
award  has  been  given  to  all  who  will  pay  the  necessary  charges 
of  transcription. 

Article  4 

Any  and  all  questions  of  disagreement  between  Signatory 
Powers  may,  by  mutual  consent,  be  submitted  by  the  nations 
concerned  to  this  International  Tribunal  for  decision,  but  every 
such  submission  shall  be  accompanied  by  an  undertaking  to 
accept  the  award. 

Article  5 

The  bench  of  Judges  for  each  particular  case  shall  consist, 
as  may  be  agreed  upon  by  the  litigating  nations,  either  of  the 
entire  bench  or  of  any  smaller  uneven  number,  not  less  than 
three  to  be  chosen  from  the  whole  Court.  In  the  event  of  a 
bench  of  three  Judges  only,  no  one  of  those  shall  be  either  a 
native  subject  or  a citizen  of  the  States  whose  interests  are  in 
litigation  in  the  case. 

Article  6 

The  general  expenses  of  the  Tribunal  are  to  be  equally  divided, 
or  upon  some  equitable  basis,  between  the  adherent  Powers, 
but  those  arising  from  each  particular  case  shall  be  provided 
for  as  may  be  directed  by  the  Tribunal.  The  presentation  of 
a case  wherein  one  or  both  of  the  parties  may  be  a non-adherent 
State  shall  be  admitted  only  upon  condition  of  a mutual  agree- 
ment that  the  States  so  litigating  shall  pay  respectively  a sum 
to  be  fixed  by  the  Tribunal  for  the  expenses  of  the  adjudication. 
The  salaries  of  the  Judges  may  be  so  adjusted  as  to  be  paid 


APPENDIX  TO  CHAPTER  VI 


801 


only  when  actually  engaged  in  the  duties  of  the  Court.  Where 
one  or  both  of  the  parties  are  non-adherent  States,  they  shall 
only  be  admitted  on  condition  that  the  litigating  States  come 
to  a common  agreement  to  pay  respectively  such  sum  as  the 
Tribunal  shall  fix  to  cover  the  expenses  of  the  proceedings. 

Article  7 

Every  litigant  before  the  International  Tribunal  shall  have 
a right  to  a rehearing  of  the  case  before  the  same  Judges  within 
three  months  after  the  notification  of  the  decision,  on  alleging 
newly-discovered  evidence  or  submitting  questions  of  law  not 
heard  and  decided  at  the  former  hearing. 

Article  8 

This  Treaty  shall  become  operative  when  nine  Sovereign 
States  such  as  are  indicated  in  the  resolution  shall  have  ratified 
its  provisions.^ 

4.  THE  ITALIAN  PROPOSALS 

With  the  object  of  preventing  or  putting  a stop  to  international 
conflicts,  the  Peace  Conference  assembled  at  The  Hague  has 
resolved  to  submit  to  the  Governments  represented  the  follow- 
ing Articles,  which  are  to  be  converted  into  international  stipu- 
lations: 

Article  1 

In  the  event  of  the  imminence  of  a conflict  between  two  or 
more  Powers,  and  after  the  failure  of  all  attempts  at  conciliation 
by  means  of  indirect  negotiations,  the  Contending  Parties  will 
be  obliged  to  have  recourse  to  mediation  or  Arbitration  in  the 
cases  indicated  by  the  present  Act. 

Article  2 

In  all  other  cases  mediation  or  Arbitration  will  be  recom- 
mended by  the  Signatory  Powers,  but  will  remain  optional. 

Article  3 

Each  of  the  Signatory  Powers  not  involved  in  the  conflict  has, 
in  all  cases,  even  during  hostilities,  the  right  to  offer  to  the 

* Conference  Internationale  de  la  Paix,  1899,  part  I,  pp.  136-137. 


802 


APPENDIX 


Contending  Parties  its  good  offices  or  its  mediation,  or  to  propose 
to  them  to  have  recourse  to  the  mediation  of  another  Power 
equally  neutral,  or  to  Arbitration.  This  offer  or  proposal  cannot 
be  considered  by  one  or  the  other  of  the  Contending  Parties 
as  an  unfriendly  act,  even  in  cases  where  mediation  and  Arbitra- 
tion, not  being  obligatory,  would  be  rejected. 

Article  4 

A demand  for,  or  an  offer  of,  mediation  has  priority  over  a 
proposal  of  Arbitration;  but  Arbitration  may,  or  must  be 
proposed,  according  to  the  circumstances  of  the  case,  not  only 
when  there  is  no  demand  for  an  offer  of  mediation,  but  also 
when  mediation  would  have  been  rejected  or  would  not  have 
led  to  conciliation. 

Article  5 

A proposal  of  mediation  or  Arbitration,  so  long  as  it  has  not 
been  formally  accepted  by  all  the  Contending  Parties,  cannot 
have  the  effect,  unless  there  be  a Convention  to  the  contrary, 
of  interrupting,  delaying,  or  impeding  mobilization  and  other 
preparatory  measures,  or  military  operations  in  progress. 

Article  6 

Recourse  to  mediation  or  Arbitration  in  conformity  with 
Article  1 is  obligatory  in  case: 

(1) 

(2) ^ 


Conference  Internationale  de  la  Paix,  1899,  part  I,  pp.  137-138. 


APPENDIX  TO  CHAPTER  VII 


1.  THE  RUSSIAN  PROPOSAL  OF  INTERNATIONAL 
ARBITRATION 

Article  7 

In  so  far  as  regards  a dispute  relating  to  questions  of  right, 
and  primarily  to  those  affecting  the  interpretation  or  applica- 
tion of  treaties  in  force,  Arbitration  is  recognized  by  the  Signa- 
tory Powers  as  being  the  most  efficacious  and  most  equitable 
means  of  settling  these  disputes  in  a friendly  manner. 

Article  8 

The  Contracting  Powers  therefore  undertake  to  have  recourse 
to  Arbitration  in  cases  relating  to  questions  of  the  above-men- 
tioned order,  so  far  as  these  affect  neither  the  vital  interests 
nor  the  national  honor  of  the  parties  in  dispute. 

Article  9 

Each  State  remains  the  sole  judge  of  the  question  whether 
this  or  that  case  shall  be  submitted  to  Arbitration,  excepting 
the  cases  enumerated  in  the  following  article,  where  the  Signa- 
tory Powers  consider  Arbitration  as  obligatory. 

Article  10 

From  and  after  the  ratification  of  the  present  Treaty  by  all 
the  Signatory  Powers,  Arbitration  shall  be  obligatory  in  the 
following  cases,  so  far  as  they  do  not  affect  vital  interests  or 
the  national  honor  of  the  contracting  States: 

I.  In  the  case  of  differences  or  conflicts  regarding  pecuniary 
damages  suffered  by  the  State  or  its  citizens,  in  consequence  of 
illegal  or  negligent  action  on  the  part  of  any  State  or  the  citi- 
zens of  the  latter. 


803 


8U4 


APPENDIX 


II.  In  the  case  of  disagreements  or  conflicts  regarding  the 
interpretation  or  application  of  treaties  or  Conventions  upon 
the  following  subjects: 

1.  Treaties  concerning  postal  and  telegraphic  service  and 
railways,  as  well  as  those  having  for  their  object  the  protection 
of  submarine  telegraphic  cables;  rules  concerning  the  means  of 
preventing  collisions  on  the  high  seas;  Conventions  concerning 
the  navigation  of  international  rivers  and  interoceanic  canals. 

2.  Conventions  concerning  the  protection  of  literary  and 
artistic  property,  as  well  as  industrial  and  proprietary  rights 
(patents,  trade-marks,  and  commercial  names);  Conventions 
regarding  monetary  affairs, weights  and  measures;  Conventions 
regarding  sanitary  affairs  and  veterinary  precautions  and  meas- 
ures against  the  phylloxera. 

3.  Conventions  regarding  inheritances,  extradition,  and 
mutual  judicial  assistance. 

4.  Boundary  Conventions  or  treaties,  so  far  as  they  con- 
cern purely  technical,  and  not  political,  questions. 

Akticle  11 

The  above  list  may  be  completed  by  subsequent  arrangements 
among  the  Signatory  Powers.  Moreover,  each  Power  shall 
be  able  to  enter  into  a special  arrangement  with  another  Power 
for  the  purpose  of  rendering  Arbitration  obligatory  in  the  above- 
mentioned  cases  before  the  general  ratification,  and  also  to 
extend  the  scope  of  Arbitration  to  all  cases  which  it  is  considered 
possible  to  submit  to  it. 


Article  12 

In  all  other  cases  of  international  conflicts  not  mentioned 
in  the  above  articles.  Arbitration,  while  certainly  being  very 
desirable  and  recommended  by  the  present  Act,  is  nevertheless 
purely  facultative — that  is  to  say,  it  can  only  be  applied  on  the 
spontaneous  initiative  of  one  of  the  parties  in  dispute  and  with 
the  express  consent  of  the  other  parties. 

Article  13 

With  the  view  of  facilitating  recourse  to  Arbitration  and  its 
application,  the  Signatory  Powers  are  agreed  to  formulate  a 


APPENDIX  TO  CHAPTER  VII 


805 


common  arrangement  for  the  employment  of  International 
Arbitration  and  for  the  fundamental  principles  to  be  observed 
in  the  drawing  up  of  the  rules  of  procedure  to  be  followed  pend- 
ing the  inquiry  into  the  dispute  and  the  pronouncement  of  the 
decision  of  the  Arbitrators.  The  application  of  these  funda- 
mental principles,  as  also  of  the  Arbitration  procedure  indicated 
in  the  Appendix  to  the  present  article,  may  be  modified  by 
virtue  of  a special  arrangement  between  States  which  may  have 
recourse  to  arbitration. ^ 

A.  EXPLANATORY  NOTE  OF  THE  RUSSIAN  DELEGATION 

RELATING  TO  ARTICLE  X OF  THE  RUSSIAN  PROJECT 

When  entering  on  an  examination  of  the  question  of  arbitra- 
tion, we  must  bear  in  mind  above  all  the  essential  difference 
between  compulsory  and  optional  arbitration. 

As  a general  proposition,  it  is  hard  to  imagine  any  disagree- 
ment of  a legal  nature  arising  within  the  province  of  positive 
international  law  which  could  not,  by  virtue  of  an  agreement 
between  the  parties,  be  settled  by  means  of  optional  inter- 
tional  arbitration.  Even  in  case  international  law,  which 
is  unfortunately  still  very  defective,  does  not  afford  a generally 
recognized  rule  for  the  solution  of  a particular  question,  the 
agreement  to  arbitrate  concluded  between  the  parties  prior 
to  the  arbitration  proceedings  may  nevertheless  create  a rule 
for  this  purpose,  and  in  this  manner  greatly  facihtate  the  task 
of  the  arbitrator. 

It  is  different  in  a case  of  compulsory  arbitration,  which  does 
not  depend  on  the  parties  having  consented  specially  to  it.  It 
goes  without  saying  that  such  arbitration  can  not  be  applied 
to  all  cases  and  to  all  kinds  of  controversies.  There  is  no  govern- 
ment that  would  consent  to  assume  in  advance  the  obligation 
to  submit  to  the  decision  of  an  Arbitration  Court  any  difference 
which  might  arise  within  the  international  domain,  provided  such 
difference  affected  the  national  honor,  its  paramount  interests,  or 
its  inalienable  possessions.  At  present  the  mutual  rights 
and  obi  gations  of  nations  are  determined  to  a notable  degree 
by  the  whole  body  of  what  are  called  political  treaties,  which 

*Conf4ieiice  Internationale  de  la  Paix,  1899,  part  I,  pp.  120-121. 


806 


APPENDIX 


are  nothing  but  the  temporary  expression  of  the  casual  and 
transitory  relations  between  the  various  national  forces.  These 
treaties  bind  the  freedom  of  action  of  the  parties  as  long  as  the 
political  conditions  under  which  they  were  created  remain  un- 
changed. When  these  conditions  change,  the  rights  and  obliga- 
tions flowing  from  these  treaties  also  necessarily  change.  As 
a general  rule,  conflicts  arising  within  the  domain  of  political 
treaties  do  not,  in  the  majority  of  cases,  relate  so  much  to  a 
difference  of  interpretation  of  any  particular  rule  as  to  the 
changes  to  be  made  in  or  the  complete  abolition  of  the  rule  itself. 

The  powers  which  take  an  active  part  in  the  political  life  of 
Europe  can  not  therefore  submit  conflicts  arising  within  the 
domain  of  political  treaties  to  the  examination  of  a court  of 
arbitration,  in  the  eyes  of  which  a rule  established  by  a treaty 
would  be  just  as  binding  and  inviolable  as  would  a rule  estab- 
lished by  positive  law  in  the  eyes  of  any  National  Court. 

From  the  standpoint  of  practical  politics,  the  impossibility 
of  universal  compulsory  arbitration  therefore  appears  evident. 

However,  on  the  other  hand,  there  is  no  doubt  that  differences 
often  arise  in  international  life  to  the  solution  of  which  arbitra- 
tion can  be  applied  at  all  times  and  in  an  absolute  manner. 
These  are  questions  which  concern  exclusively  special  points 
of  law  and  which  do  not  affect  either  the  vital  interests  or  the 
national  honor  of  the  nations.  One  can  not  help  wishing  that 
the  Peace  Conference  would  lay  down  arbitration  as  a permanent 
and  compulsory  course  of  action  in  regard  to  such  questions. 

The  recognition  of  compulsory  arbitration,  even  though  it 
were  within  the  most  restricted  limits,  would  affirm  the  prin- 
ciples of  law  in  the  relations  between  nations,  would  guarantee 
them  against  infractions  and  impairment,  and  would  neutralize, 
so  to  speak,  vast  domains  of  international  law  to  a greater  or 
less  extent.  To  the  nations  themselves,  compulsory  arbitra- 
tion would  afford  a convenient  method  of  setting  aside  the 
numerous  and  troublesome  though  not  serious  misunderstand- 
ings which  sometimes  needlessly  interrupt  diplomatic  relations; 
by  means  of  compulsory  arbitration  the  nations  could  more 
easily  enforce  their  lawful  claims  and,  what  is  still  more  im- 
portant, they  could  more  easily  avoid  compliance  with  unjusti- 
fied demands. 

Compulsory  arbitration  would  serve  the  cause  of  universal 


APPENDIX  TO  CHAPTER  VII 


807 


peace  to  an  inestimable  extent.  It  is  true  that  the  questions 
of  a secondary  character  to  which  this  remedy  is  exclusively 
applicable  very  rarely  constitute  a casus  belli.  Nevertheless, 
frequent  controversies  between  nations,  even  though  they 
concern  only  questions  of  a secondary  nature,  while  they  do 
not  constitute  a direct  menace  to  the  maintenance  of  peace, 
still  they  impair  the  good  relations  between  the  nations  and 
create  an  atmosphere  of  distrust  and  hostility  in  which  any 
incident  may  more  easily  kindle  war  as  if  by  casual  spark.  The 
effect  of  compulsory  arbitration  being  to  relieve  the  interested 
nations  from  all  responsibility  with  regard  to  the  manner  in 
which  a difference  between  them  is  to  be  settled,  would  seem 
to  contribute  toward  the  maintenance  of  their  friendly  relations 
and  in  this  way  facilitate  the  peaceful  settlement  of  the  most 
serious  disputes  which  might  arise  with  regard  to  their  most 
important  mutual  interests. 

While  thus  recognizing  the  great  importance  of  compulsory 
arbitration,  it  is  essential  above  all  to  specify  exactly  the  sphere 
of  its  application.  The  cases  in  which  compulsory  arbitration 
is  applicable  must  be  indicated. 

The  causes  of  international  disputes  are  very  numerous  and 
are  infinitely  variable.  Nevertheless,  whatever  be  the  subject 
of  the  dispute,  the  demands  made  by  any  nation  on  another 
must  come  within  one  of  the  following  categories:  (1)  One 
nation  demands  a material  indemnity  from  another  for  injuries 
and  losses  caused  it  or  one  of  its  citizens  or  subjects  by  the  acts 
of  the  defendant  nation  or  its  citizens  or  subjects  which  act  the 
first  nation  does  not  consider  to  be  in  conformity  with  right. 
(2)  One  nation  asks  another  to  exercise  or  not  to  exercise  cer- 
tain sovereign  functions,  or  to  do  or  not  to  do  certain  acts  not 
affecting  interests  of  a material  nature. 

With  regard  to  disputes  of  the  first  category,  the  application 
of  compulsory  arbitration  is  always  possible  and  desirable. 
Disputes  of  this  kind  relate  to  questions  of  law.  They  do  not 
concern  either  the  national  honor  of  the  nations,  nor  their  vital 
interests,  since  a nation  whose  national  honor  or  vital  interests 
had  been  assailed  would  obviously  not  and  could  not  confine 
itself  to  demanding  a material  indemnity  for  injuries  and  losses 
sustained  by  it.  A war,  which  is  always  a highly  regrettable 
event,  would  be  divested  of  all  significance  and  would  have 


808 


APPENDIX 


no  more  justification  if  it  were  undertaken  on  account  of  a dis- 
pute arising  with  regard  to  matters  of  little  essential  impor- 
tance, such  as  accounts  to  be  settled  for  material  injuries  caused 
a nation  by  acts  committed  by  another  and  which  the  former 
did  not  consider  to  be  in  conformity  with  right.  But  the  more 
impossible  a war  is  in  such  cases  the  more  necessary  it  is  to 
recommend  compulsory  arbitration  as  the  most  effective  method 
for  the  specific  settlement  of  disputes  of  this  kind. 

The  history  of  international  relations  proves  beyond  all  doubt 
that  in  the  great  majority  of  cases  demands  of  indemnity  for 
injuries  sustained  are  the  very  things  which  have  constituted 
the  subject  of  arbitration  proceedings.  The  grounds  on  which 
these  demands  are  based  vary  greatly.  We  will  cite,  for  in- 
stance, the  violation  of  the  duties  of  neutrality  d the  impairment 
of  the  rights  of  neutral  nations;^  the  unlawful  arrest  of  a foreign 
subject;^  losses  caused  a foreign  subject  through  the  fault  of  a 
nation;^  the  seizure  of  the  private  property  of  a belligerent  on 
the  mainland;®  unlawful  seizure  of  vessels;®  violation  of  fishing 
rights.^ 

In  general,  whatever  be  the  causes  or  the  circumstances  of 
the  controversy,  the  nations  find  no  difficulty  in  submitting 
it  to  arbitration  if  the  question  is  one  of  indemnity  for  injuries 
and  losses.  It  would  therefore  seem  that  the  Conference  ought 
to  follow  this  same  course  by  declaring  arbitration  compulsory 
for  the  examination  of  controversies  of  the  first  category.  Of 
course,  in  exceptional  cases  or  when  the  pecuniary  question 
involved  assumes  an  unusually  great  importance,  from  the 
standpoint  of  the  nation’s  interests,  for  instance  in  case  of  the 
bankruptcy  of  a nation,  every  power  may  invoke  the  national 
or  its  vital  interests  in  order  to  decline  arbitration  as  a means 
of  settling  the  dispute. 

As  far  as  the  disputes  of  the  second  category  are  concerned, 

* The  General  Armstrong  Case,  1851,  and  the  Alabama  Case,  1872. 

* Blockade  of  Portendik,  1843,  etc. 

’ The  Captain  White  Case,  1864.  The  Dondonald  Case,  1873,  etc. 

* The  Butterfield  Case,  1888.  The  conflict  between  Mexico  and  the 
United  States,  1872,  etc. 

* The  Macedonian  Case. 

* Seizure  of  the  vessels  Veloz,  Victoria,  and  Vigie,  1852.  Case  of  the 
vessel  Phare,  1879,  and  others. 

’ Newfoundland  Fishery  cases,  1877,  etc. 


APPENDIX  TO  CHAPTER  VII 


809 


they  are  much  more  important  and  constitute  a greater  menace 
to  universal  peace,  and  it  would  seem  that  compulsory  arbitra- 
tion can  not  and  ought  not  to  be  applied  to  them.  This  category 
includes  controversies  of  all  kinds  regarding  political  treaties 
and  affecting  the  vital  interests  and  national  honor  of  the  na- 
tions. Compulsory  arbitration  would  bind  the  hands  of  the 
nation,  in  these  cases,  and  compel  it  to  assume  a passive  role 
in  questions  on  which  its  safety  depends  in  a great  measure, 
that  is,  in  questions  in  which  none  can  be  judge  but  the  sov- 
ereign power.  In  introducing  compulsory  arbitration  into 
the  international  life  of  nations  extreme  caution  should  be  ob- 
served in  order  not  to  extend  its  sphere  of  application  exces- 
sively, and  thus  shake  the  confidence  which  it  might  inspire, 
or  discredit  it  in  the  eyes  of  the  governments  and  peoples. 

We  must  not  lose  sight  of  the  fact  that  every  nation,  and 
especially  every  great  power,  would  prefer  to  propose  the  abro- 
gation of  a treaty  establishing  compulsory  arbitration  rather 
than  to  submit  to  it  in  questions  which  peremptorily  demand 
that  the  decision  be  reached  by  the  sovereign  power  freely  and 
without  interference.  At  all  events,  for  the  sake  of  the  subse- 
quent success  of  arbitration  as  an  institution,  the  Conference 
ought  to  confine  its  application  to  a certain  number  of  questions 
of  law  arising  with  regard  to  the  interpretation  of  existing 
treaties  and  which  are  divested  of  all  political  significance. 
These  treaties  should  be  indicated  in  advance  in  an  express 
manner  by  the  Conference,  and  their  enumeration  could  be 
added  to  in  time  as  suggested  by  the  theory  and  especially  the 
practice  of  international  law. 

Among  the  treaties  for  the  interpretation  of  which  compul- 
sory arbitration  ought  to  be  admitted  fully  and  unconditionally 
we  may  cite  first  of  all  the  extensive  group  of  those  having  uni- 
versal character  and  which  have  constituted  a system  of  inter- 
national means  (international  unions)  for  subserving  interests 
which  are  likewise  international.  Such  are,  for  instance,  the 
conventions  relating  to  the  postal  and  telegraph  union,  to  the 
international  defense  of  copyrights,  etc.  In  the  course  of  time, 
as  the  nations  are  drawn  closer  together,  in  their  relations, 
a large  number  of  other  moral  and  material  interests  will  lose 
their  exclusively  national  character  and  be  raised  to  the  level  of 
interests  of  the  international  commonwealth  as  a whole.  It 


810 


APPENDIX 


is  an  impossible  task  for  a single  nation  to  attend  to  these  inter- 
ests by  its  own  efforts  and  means.  This  is  the  reason  why  every 
year  there  is  an  increasing  number  of  treaties  having  a universal 
character,  embracing  many  nations,  and  determining  the  means 
and  methods  of  affording  common  protection  to  common  in- 
terests. While  other  treaties  are  not,  as  a general  rule,  anything 
but  factitious  compromises  of  opposing  interests,  treaties  of  a 
universal  character  always  necessarily  represent  a concordance 
of  identical  and  common  interests.  This  is  the  reason  why  no 
serious  or  inexplicable  controversies  ever  arise  or  can  arise  with 
regard  to  these  treaties,  that  is,  controversies  of  a national  char- 
acter in  which  the  interests  of  both  parties  are  reciprocally 
excluded.  With  regard  to  temporary  misunderstandings  con- 
cerning their  interpretation,  every  nation  will  willingly  entrust 
their  settlement  to  a Court  of  Arbitration  for  the  reason  that  all 
the  Powers  are  equally  concerned  in  having  these  treaties  remain 
inviolable  as  constituting  the  basis  of  an  extensive  and  complex 
system  of  institutions  and  measures  of  an  international  char- 
acter which  are  the  sole  means  of  satisfying  essential  and  per- 
manent want. 

It  must  be  observed  that  the  first  attempt  to  introduce  com- 
pulsory arbitration  into  international  practice  was  made  by 
a treaty  of  a universal  character,  viz : that  relating  to  the  postal 
union  of  1874.  Article  XVI  of  this  treaty  provides  for  com- 
pulsory arbitration  as  a means  of  settling  all  differences  arising 
with  regard  to  the  interpretation  and  application  of  the  treaty 
in  question. 

The  Conference  of  The  Hague  would  therefore  seem  to  be  per- 
fectly warranted  in  extending  the  provision  of  Article  XVI  of 
the  Treaty  of  Berne  to  all  treaties  of  a universal  character 
which  are  entirely  similar  to  this  one. 

At  present,  all  treaties  coming  within  the  following  two  sub- 
divisions may  be  included  within  the  category  of  treaties  of  a 
universal  character  which  are  susceptible  of  admitting  compul- 
sory arbitration: 

1.  Treaties  concluded  for  the  purpose  of  affording  inter- 
national protection  to  the  great  arteries  of  international  com- 
munication, postal,  telegraph  and  railroad  conventions,  con- 
ventions for  the  protection  of  submarine  cables,  regulations  for 
the  purpose  of  preventing  collisions  of  vessels  on  the  high  seas. 


APPENDIX  TO  CHAPTER  VII 


811 


j and  conventions  relating  to  navigation  on  international  rivers 
and  interoceanic  canals. 

2.  Treaties  concluded  with  a view  to  affording  international 
protection  to  intellectual  and  moral  interests,  either  of  particular 
I nations  or  of  the  international  commonwealth  in  general.  To 
j this  subdivision  belong  conventions  relating  to  literary,  artist- 
I ical  and  musical  copyrights,  conventions  for  the  protection  of 
industrial  property  (trademarks  and  patents),  convention  for 
the  use  of  weights  and  measures,  sanitary  conventions,  veteri- 
nary conventions,  and  conventions  for  the  measures  to  be  taken 
against  the  phylloxera. 

Besides  treaties  of  a universal  character,  compulsory  arbitra- 
tion could  also  be  apphed  to  the  settlement  of  differences  arising 
with  regard  to  the  interpretation  and  application  of  treaties 
relating  to  matters  within  the  special  domains  of  international 
private,  civil  and  criminal  law. 

It  must  be  remarked,  however,  that  the  most  important  ques- 
tions of  international  private  law  are  now  determined  by  the 
special  legislation  of  each  nation. 

By  reason  of  the  inconveniences  of  this  class  of  affairs,  result- 
ing in  an  extreme  lack  of  definiteness  with  regard  to  the  mutual 
rights  and  duties  of  individuals  in  international  intercourse, 
the  question  of  forming  an  international  code  of  private  inter- 
national law  has  been  raised.  As  long  as  this  question  remains 
undecided,  either  by  the  conclusion  of  separate  treaties  among 
the  nations  or  by  the  conclusion  of  a treaty  of  a universal  char- 
acter, it  would  be  more  wise  to  admit  compulsory  arbitration 
only  in  questions  relating  to  the  right  of  succession,  which  are 
already  regulated  to  a sufficient  extent  by  international  treaties. 

As  regards  questions  of  international  criminal  law  arising  in 
connection  with  the  interpretation  of  treaties  relating  to  cooper- 
ation among  nations  in  the  administration  of  justice,  it  would 
seem  that  as  these  questions  are  exclusively  of  a special  juridical 
nature  they  might  be  decided  by  means  of  compulsory  arbitra- 
tion, this  means  appearing  to  be  equally  possible  and  desirable 
in  this  regard  for  all  nations. 

Finally,  in  order  to  do  away  with  the  disputes  and  misunder- 
standings which  so  frequently  arise  among  nations  with  regard  to 
boundaries,  it  would  also  appear  entirely  appropriate  to  entrust 
the  interpretation  of  so-called  boundary  treaties  to  compulsory 


812 


APPENDIX 


arbitration  for  the  reason  that  they  have  a technical  rather  than 
a political  character. 

These  are  the  hmits  within  which  it  is  possible  and  desirable 
to  fix  the  sphere  of  action  of  compulsory  arbitration. 


There  is  reason  to  beheve  that  in  the  course  of  time  it  will 
become  possible  to  extend  compulsory  arbitration  to  cases  which 
we  do  not  yet  foresee,  but  even  within  the  hmits  indicated  above 
this  means  of  action  will  afford  a great  help  to  the  triumph  of 
the  great  principles  of  right  and  justice  in  the  international  do- 
main. 

The  Peace  Conference  will,  by  recognizing  the  use  of  arbitra- 
tion as  far  as  possible  to  be  compulsory,  by  that  very  act 
advance  nearer  to  the  goal  which  was  proposed  for  the  govern- 
ment of  the  great  Powers  in  the  Congress  of  Aix  la  Chapelle  of 
1818.  It  will  set  an  example  of  justice,  concord,  and  modera- 
tion; it  will  devote  the  efforts  of  all  governments  to  the  pro- 
tection of  the  arts  of  peace,  to  the  advancement  of  the  internal 
prosperity  of  nations,  and  to  the  elevation  of  the  lofty  ideas  of 
religion  and  morality.^ 

2.  TREATIES  OF  ARBITRATION  SINCE  THE  FIRST 
HAGUE  CONFERENCE^* 

Readers  of  Mr.  Holls’  excellent  volume  on  the  Peace  Confer- 
ence at  The  Hague  will  recall  that  the  First  Conference  attempted 
to  frame  and  secure  the  adoption  of  a treaty  of  arbitration  by 
which  the  nations  bound  themselves  to  arbitrate  a carefully 
selected  list  of  subjects.  It  is  well  known  that  this  attempt 
failed,  owing  to  the  opposition  of  Germany.  As  a compromise. 
Article  19  of  the  convention  for  the  peaceful  adjustment  of  inter- 
national differences  was  adopted: 

Independently  of  existing  general  or  special  treaties  imposing  the  obliga- 
tion to  have  recourse  to  arbitration  on  the  part  of  any  of  the  Signatory 
Powers,  these  powers  reserve  to  themselves  the  right  to  conclude,  either  be- 
fore the  ratification  of  the  present  convention  or  subsequent  to  that  date, 
new  agreements,  general  or  special,  with  a view  of  extending  the  obligation 

^ Conference  Internationale  de  la  Paix,  1899,  part  I,  pp.  124-128. 

^ Reprinted  from  the  American  Journal  of  International  Law  (1908)  Vol. 
II,  pp.  921-928. 


APPENDIX  TO  CHAPTER  VII 


813 


to  submit  controversies  to  arbitration  to  all  cases  which  they  consider  suit- 
able for  such  submission.  [Reenacted  in  1907  as  Article  40.1 

The  article  did  not  seem  at  the  time  to  be  of  any  special  im- 
portance and  it  was  generally  looked  upon  as  useless  because 
independent  and  sovereign  States  possess  the  right  without 
special  reservation  to  conclude  arbitration  agreements,  general 
or  special,  without  being  specifically  empowered  to  do  so.  The 
fact  is,  however,  that  this  article,  insignificant  and  useless  as 
it  may  seem,  marks,  one  may  almost  say,  an  era  in  the  history 
of  arbitration.  The  existence  of  the  article  has  called  attention 
to  the  subject  of  arbitration  and  by  reference  to  it  many  States 
have  negotiated  arbitration  treaties.  It  is  true  that  there  is  no 
legal  obligation  created  by  the  article  and  it  is  difficult  to  find 
a moral  one,  for  it  is  not  declared  to  be  the  duty  of  any  State  to 
conclude  arbitration  treaties.  The  moral  effect  of  the  article 
has,  however,  been  great  and  salutary,  and  the  existence  of 
numerous  arbitration  treaties  based  upon  the  reservation  con- 
tained in  the  article  shows  the  attention  and  respect  which 
nations  pay  to  the  various  provisions  of  The  Hague  Conference. 

The  following  enumeration  of  the  treaties  concluded  since  the 
First  Hague  Conference  and  an  analysis  of  the  compromis  clauses 
will  therefore  be  of  no  little  interest — perhaps  of  considerable 
value : 

Argentine-Bolivia,  February  3,  1902. 

Argentine-Brazil,  September  7,  1905. 

Argentine-Chile,  May  28,  1902. 

Argentine-Paraguay,  November  6,  1899. 

(3)*  Austria-Hungary-Great  Britain,  January  11,  1905 

(3)  Austria-Hungary-Switzerland,  December  3,  1904. 

(1)  Belgium-Denmark,  April  26,  1905. 

(1)  Belgium-Greece,  May  2,  1905. 

(1)  Belgium-Norway  and  Sweden,  November  30,  1904. 

(1)  Belgium-Roumania,  May  27,  1905. 

(1)  Belgium-Russia,  October  30,  1904. 

(1)  Belgium-Spain,  January  23,  1905. 

(1)  Belgium-Switzerland,  November  15,  1904. 

Bolivia-Peru,  November  21,  1901. 

' The  figures  in  parentheses  refer  to  the  numbered  paragraphs  following 
the  list  of  treaties.  These  paragraphs  describe  briefly  the  nature  of  the 
reference  clauses. 


814 


APPENDIX 


(5)  Bolivia-Spain,  February  17,  1902. 

Colombia-Peru,  September  12,  1905. 

(5)  Colombia-Spain,  December  17,  1902. 

(3)  Denmark-France,  September  15,  1905. 

(3)  Denmark-Great  Britain,  October  25,  1905. 

(2)  Denmark-Italy,  December  16,  1905. 

(2)  Denmark-Netherlands,  February  12,  1904. 

(1)  Denmark-Russia,  March  1,  1905. 

(1)  Denmark-Spain,  December  1,  1905. 

(3)  France-Great  Britain,  October  14,  1903. 

(3)  France-Italy,  December  26,  1903. 

(3)  France-Netherlands,  April  6,  1904. 

(3)  France-Norway  and  Sweden,  July  9,  1904. 

(3)  France-Spain,  February  26,  1904. 

(3)  France-Sweden  and  Norway,  July  9,  1904. 

(3)  France-Switzerland,  December  14,  1904. 

(3)  France-United  States,  February  10,  1908. 

(3)  Germany-Great  Britain,  July  12,  1904. 

(3)  Great  Britain-Italy,  February  1,  1904. 

(3)  Great  Britain-Netherlands,  February  15,  1905. 

(3)  Great  Britain-Norway  and  Sweden,  August  11,  1904. 
(3)  Great  Britain-Portugal,  November  16,  1904. 

(3)  Great  Britain-Spain,  February  27,  1904. 

(3)  Great  Britain-Switzerland,  November  16,  1904. 

(3)  Great  Britain-United  States,  April  4,  1908. 

(8)  Guatemala-Spain,  February  28,  1902. 

(6)  Honduras-Spain,  May  13,  1905. 

(6)  International,  Janaury  29,  1902. 

(7)  International,  January  30,  1902. 

Italy-Argentine,  September  18,  1907. 

Italy-Mexico,  October  16,  1907. 

Italy-Peru,  April  18,  1905. 

Italy-Portugal,  May  11,  1905. 

(3)  Italy  “Switzerland,  November  23,  1904. 

(8)  Mexico-Spain,  January  11,  1902. 

(3)  Mexico-United  States,  March  24,  1908. 

Netherlands-Portugal,  October  1,  1904. 

(1)  Norway-Sweden,  October  26,  1905. 

(3)  Norway-United  States,  April  4,  1908. 

(1)  Norway  and  Sweden-Russia,  December  9,  1904. 


APPENDIX  TO  CHAPTER  VII 


815 


Norway  and  Sweden-Spain,  January  23,  1905. 

(1)  Norway  and  Sweden-Switzerland,  December  17,  1904. 
(4)  Portugal-Spain,  May  31,  1904. 

(3)  Portugal-Austria-Hungary,  February  13,  1906. 

(10)  Portugal-Denmark,  March  20,  1907. 

(3)  Portugal-France,  June  29,  1906. 

(3)  Portugal-Great  Britain,  November  16,  1904. 

(3)  Portugal-Italy,  May  11,  1905. 

(9)  Portugal-Netherlands,  October  1,  1904. 

(3)  Portugal-Norway  and  Sweden,  May  6,  1905. 

(4)  Portugal-Spain,  May  31,  1904. 

(3)  Portugal-Switzerland,  August  18,  1905. 

(1)  Russia-Norway  and  Sweden,  November  26,  1904. 

(3)  Spain-Switzerland,  May  14,  1907. 

(3)  Spain-United  States,  April  20,  1908. 

(5)  Spain-Uruguay,  January  28,  1902. 

(3)  United  States-Denmark,  May  18,  1908. 

(3)  United  States-Italy,  March  28, 1908. 

(3)  United  States-Japan,  May  5,  1908. 

(3)  United  States-Netherlands,  May  2,  1908. 

(3)  United  States-Portugal,  April  6,  1908. 

(3)  United  States-Sweden,  May  2,  1908. 

(3)  United  States-Switzerland,  February  29,  1908. 

Notes. 

(1)  The  article  of  reference  in  these  treaties  is  substantially 
similar  to  the  article  in  the  treaty  between  Belgium  and  Russia, 
which  reads  as  follows: 


Article  I. 

The  high  contracting  parties  agree  to  submit  to  the  Permanent  Court  of 
Arbitration  established  at  The  Hague  by  the  Convention  of  July  29,  1899, 
the  differences  which  may  arise  between  them  in  the  cases  enumerated  in 
Article  3,  in  so  far  as  they  affect  neither  the  independence,  the  honor,  the 
vital  interests,  nor  the  exercise  of  sovereignty  of  the  contracting  countries, 
and  provided  it  has  been  impossible  to  obtain  an  amicable  solution  by  means 
of  direct  diplomatic  negotiations  or  by  any  other  method  of  conciliation. 

Article  3,  referred  to  in  the  above  quotation,  reads  as  follows: 

Arbitration  shall  be  obligatory  between  the  high  contracting  parties  in 
the  following  cases: 


816 


APPENDIX 


1.  In  case  of  disputes  concerning  the  application  or  interpretation  of  any 
convention  concluded  or  to  be  concluded  between  the  high  contracting 
parties  and  relating — 

a.  To  matters  of  international  private  law; 

b.  To  the  management  of  companies; 

c.  To  matters  of  procedure,  either  civil  or  criminal,  and  to  extradition. 

2.  In  cases  of  disputes  concerning  pecuniary  claims  based  on  damages, 
when  the  principle  of  indemnity  has  been  recognized  by  the  parties. 

Differences  which  may  arise  with  regard  to  the  interpretation  or  applica- 
tion of  a convention  concluded  or  to  be  concluded  between  the  high  con- 
tracting parties  and  in  which  third  powers  have  participated  or  to  which 
they  have  adhered  shall  be  excluded  from  settlement  by  arbitration. 

The  treaty  between  Norway  and  Sweden,  included  among 
those  to  which  Note  1 refers,  differs  from  the  others  in  that  ques- 
tions as  to  whether  disputes  involve  the  vital  interests  of  either 
country  are  to  be  submitted  to  The  Hague  Court  instead  of  being 
decided  by  each  nation  for  itself. 

In  the  treaty  between  Russia  and  Norway  and  Sweden,  No- 
vember 26,  1904,  no  reference  is  made  in  Article  1 to  Article  3, 
although  the  latter  article  appears  in  practically  the  same  form 
as  here  given,  except  that  the  final  paragraph  is  missing. 

(2)  The  reference  clause  in  these  treaties  is  substantially 
similar  to  the  article  in  the  treaty  between  Denmark  and  Italy, 
which  reads  as  follows: 


Article  Premier. 

Les  Hautes  Parties  contractantes  s’engagent  k soumettre  k la  Cour  per- 
manente  d’arbitrage,  4tablie  ^ La  Haye  par  La  Convention  du  29  juillet 
1899,  tous  les  diff trends  de  n’importe  quelle  nature  qui  viendraient  ll  s’41ever 
entre  Elies  et  qui  n’auraient  pu  6tre  r4solus  par  les  voies  diplomatiques, 
et  cela  mgme  dans  le  cas  ou  ces  diff4rends  auraient,  leur  origine  dans  des 
faits  ant^rieurs  k la  conclusion  de  la  presente  Convention. 

(3)  The  reference  clause  in  these  treaties  is  similar,  substan- 
tially, to  that  contained  in  the  treaty  between  France  and  Great 
Britain,  which  reads  as  follows: 

Article  I. 

Differences  which  may  arise  of  a legal  nature,  or  relating  to  the  interpre- 
tation of  treaties  existing  between  the  two  contracting  parties,  and  which 
it  may  not  have  been  possible  to  settle  by  diplomacy,  shall  be  referred  to 
the  Permanent  Court  of  Arbitration,  established  at  The  Hague  by  the  con- 
vention of  the  29th  July,  1899;  provided,  nevertheless,  that  they  do  not 


APPENDIX  TO  CHAPTER  VII 


817 


affect  the  vital  iaterests,  the  independence,  or  the  honor  of  the  two  con- 
tracting States,  and  do  not  concern  the  interests  of  third  parties. 

In  the  treaty  between  Mexico  and  the  United  States,  March 
24,  1908,  the  following  clause  is  inserted  after  the  word  dip- 
lomacy in  the  above  reference  paragraph:  “in  case  no  other 
arbitration  should  have  been  agreed  upon.  ” 

The  treaty  between  Portugal  and  France,  June  29,  1906, 
requires  that  the  causes  of  the  arbitration  shall  arise  after  the 
date  of  the  treaty. 

(4)  The  reference  clause  is  as  follows : 

Akticle  I. 

All  questions  of  a judicial  character  relative  to  the  interpretation  of 
treaties  or  conventions  existing,  or  hereafter  to  exist,  between  Portugal 
and  Spain,  bordering  and  friendly  nations,  and  which  questions  can  not  be 
amicably  solved  by  diplomacy,  shall  be  submitted  to  a commission,  con- 
stituted expressly  for  that  purpose,  by  previous  agreement;  and  in  the  event 
of  the  parties  failing  to  agree  upon  the  constitution  of  such  commission 
within  a term  not  to  exceed  one  month  from  the  time  such  commission  is 
proposed  by  one  of  the  high  contracting  parties,  then  the  submission  shall 
be  to  the  Permanent  Arbitration  Tribunal  or  court  instituted  at  The  Hague 
by  virtue  of  the  convention  there  held  on  the  29th  of  June,  1899,  provided 
that  the  questions  so  referred  and  submitted  shall  not  involve  matters  of 
vital  effect  upon  the  independence  or  honor  of  the  contracting  nations  or 
the  interests  of  other  States. 

(5)  The  reference  clause  is  similar  to  Article  3 of  the  treaty 
between  Spain  and  Uruguay,  which  reads  as  follows: 

Article  3. 

Pour  le  jugement  des  questions  qui,  en  execution  de  la  presents  conven- 
tion, seront  soumises  a un  arbitrage,  les  fonctions  d’arbitre  seront  confines, 
de  preference,  un  chef  d’Etat,  d’une  des  R4publiques  hispano-am4ricaines 
ou  a un  tribunal  compose  de  juges  et  experts  espagnols,  uruguayens  ou 
hispano-americaines. 

A defaut  d’entente  sur  le  choLx  des  arbitres,  les  Hautes  Parties  signataires 
se  soumettront  au  Tribunal  international  permanent  d’arbitrage,  etabli 
conformement  aux  resolutions  de  la  Conference  de  la  Haye,  de  1899,  et, 
dans  ce  cas,  comme  dans  le  cas  precedent,  elles  se  conformeront,  a la  pro- 
cedure arbitrale  spedfiee  au  chapitre  III  des  dites  resolutions. 

Article  1 of  this  treaty  reads  as  follows : 

Article  Premier. 

Les  Hautes  Parties  contractantes  s’obligent  a soumettre  k un  jugement 
arbitral  toutes  les  difficultes,  de  quelque  nature  qu’elles  soient,  qui,  pour 


818 


APPENDIX 


une  cause  quelconque,  viendraient  a surgir  entre  elles,  sauf  le  cas  ou  ces 
difficultes  porteraient  atteinte  aux  dispositions  de  la  constitution  de  I’un 
ou  I’autre  pays,  et  a I’exception  de  calles  qui  peuvent  etre  r4solus  par  des 
negociations  directes. 

(6)  Conference  of  1902.  Treaty  of  obligatory  arbitration 
between  Argentine  Republic,  Bolivia,  Dominican  Republic, 
Guatemala,  Mexico,  Paraguay,  Peru,  Salvador,  and  Uruguay. 
January  29,  1902.  (To  Hague  if  agreeable.  All  disputes 
except  those  affecting  national  honor  or  independence). 

(7)  Conference  of  1902.  Treaty  for  arbitration  of  pecuniary 
claims  between  the  United  States  of  America,  Argentine  Repub- 
lic, Bolivia,  Colombia,  Costa  Rica,  Chile,  Dominican  Republic, 
Ecuador,  Salvador,  Guatemala,  Haiti,  Honduras,  Mexico, 
Nicaragua,  Paraguay,  Peru,  and  Uruguay.  (This  provides  for 
reference  to  The  Hague  of  pecuniary  claims.) 

(8)  The  reference  clause  in  the  treaty  between  Guatemala 
and  Spain  is  substantially  similar  to  that  in  the  treaty  between 
Mexico  and  Spain,  which  reads  as  follows: 

Article  3. 

For  the  decision  of  questions  which,  in  accordance  with  this  treaty,  may 
be  submitted  to  arbitration,  the  functions  of  arbitrator  shall  be  conferred 
with  preference  upon  a chief  of  State  of  one  of  the  Spanish-American  repub- 
lics, or  upon  a tribunal  formed  of  Mexicans,  Spanish,  or  Spanish-American 
judges  and  experts. 

In  the  case  of  not  agreeing  in  the  appointment  of  arbitrators  the  high 
contracting  parties  shall  submit  themselves  to  the  Permanent  International 
Tribunal  of  Arbitration  established  in  accordance  with  the  resolutions  of  The 
Hague  Conference  of  1899  with  adherence  in  the  latter,  and  in  the  former 
case  to  the  arbitral  procedure  specified  in  Chapter  III  of  the  said  resolutions. 

Articles  1 and  2 of  this  treaty  read  as  follows: 

Article  1. 

The  high  contracting  parties  agree  to  submit  to  the  decision  of  arbitra- 
tors all  controversies  which  may  arise  between  them  during  the  existence  of 
the  present  treaty  in  which  they  might  not  have  been  able  to  reach  an  amic- 
able solution  by  direct  negotiation;  provided  that  said  controversies  affect 
neither  the  national  independence  nor  honor. 

Art.  2.  N either  the  national  independence  nor  honor  shall  be  considered 
to  be  compromised  in  the  following  cases: 

A.  When  treating  of  pecuniary  damages  and  prejudices  suffered  by  one 
of  the  contracting  States  or  by  its  citizens  because  of  illegal  acts  or  omissions 
on  the  part  of  the  other  contracting  State  or  its  citizens. 


APPENDIX  TO  CHAPTER  VII 


819 


B.  When  treating  of  the  interpretation  of  the  treaties,  agreements,  and 
conventions  relating  to  the  protection  of  ownership  of  artistic,  literary, 
and  industrial  property,  as  well  as  to  that  of  privileges,  patents  of  inven- 
tions, trademarks,  mercantile  firms,  money,  weights  and  measures,  and 
sanitary  precautions,  either  veterinary  or  to  exclude  phylloxera. 

C.  When  treating  of  the  application  of  treaties,  agreements,  and  con- 
ventions relating  to  successions,  aid,  and  judicial  correspondence. 

D.  When  treating  of  treaties,  agreements,  and  conventions  now  in 
force,  or  which  may  be  celebrated  hereafter,  with  the  object  of  putting  the 
principles  of  public  or  private  international  law,  either  civil  or  penal,  into 
practice. 

E.  When  treating  of  questions  which  relate  to  the  interpretation  or 
execution  of  treaties,  agreements,  and  conventions  of  friendship,  commerce, 
and  navigation. 

(9)  In  this  treaty  the  contracting  Powers  agree  to  submit 
to  The  Hague  Tribunal  all  difficulties  which  they  had  agreed  to 
arbitrate  previous  to  the  signing  of  The  Hague  Convention  of 
1899  for  the  pacific  settlement  of  international  disputes. 

(10)  The  reference  articles  of  this  treaty  read  as  follows: 

Auticle  I. 

Les  Hautes  Parties  Contractantes  s’engagent  a soumettre  a I’arbitrage 
tons  les  diff4rends  de  n’importe  quelle  nature  qui  viendraient  a s’41ever 
entre  Elies  et  qui  n’auraient  pu  etre  r4solus  par  les  voies  diplomatiques. 
Elies  s’adresseront  a ceteffet  a la  Courpermanente  d’arbitrage,  4tablie  ^ la 
Haye  par  la  Convention  du  29  juillet  1899,  It  moins,  d’etre  convenues  d’un 
tribunal  arbitral  different. 

Abticle  IV, 

II  est  entendu  qu’a  moins  que  la  contro verse  ne  porte  sur  1 ’application 
d’une  convention  entre  les  deux  Etats,  ou  qu’il  ne  s’agisse  d’un  cas  de  d4ni 
de  justice,  I’article  1®''  ne  sera  pas  applicable  aux  diff4rends  qui  pourraient 
s’41ever  entre  un  ressortissant  de  I’une  des  Parties  et  I’autre  Etat  Contrac- 
ant  lorsque  les  tribunaux  auront,  d’apr4s  la  legislation  de  cet  Etat,  comp4- 
tence  pour  juger  la  contestation. 

Those  treaties  in  the  list  which  are  not  referred  to  in  the  fore- 
going notes  make  no  reference  to  The  Hague  Tribunal. 


APPENDIX  TO  CHAPTER  IX 


1.  ARTICLES  OF  CONFEDERATION,  1781 

EXTRACT  PROM  ARTICLE  9. 

The  United  States,  in  Congress  assembled,  shall  also  be  the  last  resort  on 
appeal  in  all  disputes  and  differences  now  subsisting,  or  that  hereafter  may 
arise  between  two  or  more  States  concerning  boimdary,  jurisdiction,  or  any 
other  cause  whatever;  which  authority  shall  always  be  exercised  in  the 
manner  following : Whenever  the  legislative  or  executive  authority,  or  law- 
ful agent  of  any  State  in  controversy  with  another,  shall  present  a petition 
to  Congress,  stating  the  matter  in  question,  and  praying  for  a hearing,  notice 
thereof  shall  be  given  by  order  of  Congress  to  the  legislative  or  executive 
authority  of  the  other  State  in  controversy,  and  a day  assigned  for  the 
appearance  of  the  parties  by  their  lawful  agents,  who  shall  then  be  directed 
to  appoint,  by  joint  consent,  commissioners  or  judges  to  constitute  a court 
for  hearing  and  determining  the  matter  in  question ; but  if  they  cannot  agree. 
Congress  shall  name  three  persons  out  of  each  of  the  United  States,  and  from 
the  list  of  such  persons  each  party  shall  alternately  strike  out  one,  the  peti- 
tioners beginning,  until  the  munber  shall  be  reduced  to  thirteen;  and  from 
that  number  not  less  than  seven  nor  more  than  nine  names,  as  Congress 
shall  direct,  shall,  in  the  presence  of  Congress,  be  drawn  out  by  lot;  and  the 
persons  whose  names  shall  be  so  drawn,  or  any  five  of  them,  shall  be 
commissioners  or  judges,  to  hear  and  finally  determine  the  controversy,  so 
always  as  a major  part  of  the  judges  who  shall  hear  the  cause  shall  agree 
in  the  determination;  and  if  either  party  shall  neglect  to  attend  at  the  day 
appointed,  without  showing  reasons  which  Congress  shall  judge  sufficient, 
or  being  present,  shall  refuse  to  strike,  the  Congress  shall  proceed  to  nomi- 
nate three  persons  out  of  each  State,  and  the  secretary  of  Congress  shall 
strike  in  behalf  of  such  party  absent  or  refusing;  and  the  judgment  and 
sentence  of  the  court,  to  be  appointed  in  the  manner  before  prescribed,  shall 
be  final  and  conclusive;  and  if  any  of  the  parties  shall  refuse  to  submit  to 
the  authority  of  such  court,  or  to  appear  or  defend  their  claim  or  cause, 
the  court  shall  nevertheless  proceed  to  pronoimce  sentence  or  judgment, 
which  shall  in  like  manner  be  final  and  decisive;  the  judgment  or  sentence 
and  other  proceedings  being  in  either  case  transmitted  to  Congress,  and 
lodged  among  the  acts  of  Congress  for  the  security  of  the  parties  concerned, 
provided,  that  every  commissioner,  before  he  sits  in  judgment,  shall  take  an 
oath,  to  be  administered  by  one  of  the  judges  of  the  Supreme  or  Superior 
Court  of  the  State  where  the  cause  shall  be  tried,  “ well  and  truly  to  hear 
and  determine  the  matter  in  question,  according  to  the  best  of  his  judg- 

820 


APPENDIX  TO  CHAPTER  IX 


821 


ment,  without  favor,  affection,  or  hope  of  reward.”  Provided,  also,  that  no 
State  shall  be  deprived  of  territory  for  the  benefit  of  the  United  States. 

All  controversies  concerning  the  private  right  of  soil  claimed  under 
different  grants  of  two  or  more  States,  whose  jurisdictions,  as  they  may 
respect  such  lands  and  the  States  which  passed  such  grants  are  adjusted, 
the  said  grants  or  either  of  them  being  at  the  same  time  claimed  to  have 
originated  antecedent  to  such  settlement  of  jurisdiction,  shall,  on  the  peti- 
tion of  either  party  to  the  Congress  of  the  United  States,  be  finally  deter- 
mined, as  near  as  may  be,  in  the  same  manner  as  is  before  prescribed  for 
deciding  disputes  respecting  territorial  jurisdiction  between  different 
States. 


2.  PROPOSITION  OF  THE  AMERICAN  DELEGATION 
Regarding  the  Permanent  Court  of  Arbitration 

I 

A Permanent  Court  of  Arbitration  shall  be  organized,  to  con- 
sist of  fifteen  judges  of  the  highest  moral  standing  and  of  recog- 
nized competency  in  questions  of  international  law.  They  and 
their  successors  shall  be  appointed  in  the  manner  to  be  deter- 
mined by  this  Conference,  but  they  shall  be  so  chosen  from  the 
different  countries  that  the  various  systems  of  law  and  pro- 
cedure and  the  principal  languages  shall  be  suitably  represented 
in  the  personnel  of  the  court.  They  shall  be  appointed  for  — 
years,  or  until  their  successors  have  been  appointed  and  have 
accepted. 


II 

The  Permanent  Court  shall  convene  annually  at  The  Hague 
on  a specified  date  and  shall  remain  in  session  as  long  as  neces- 
sary. It  shall  elect  its  own  officers  and,  saving  the  stipulations 
of  the  convention,  it  shall  draw  up  its  own  regulations.  Every 
decision  shall  be  reached  by  a majority,  and  nine  members  shall 
constitute  a quorum.  The  judges  shall  be  equal  in  rank,  shall 
enjoy  diplomatic  immunity,  and  shall  receive  a salary  sufficient 
to  enable  them  to  devote  their  time  to  the  consideration  of  the 
matters  brought  before  them. 


822 


APPENDIX 


III 

In  no  case  (unless  the  parties  expressly  consent  thereto)  shall 
a judge  take  part  in  the  consideration  or  decision  of  any  case 
before  the  court  when  his  nation  is  a party  therein. 

IV 

The  Permanent  Court  shall  be  competent  to  take  cognizance 
and  determine  all  cases  involving  differences  of  an  international 
character  between  sovereign  nations,  which  it  has  been  impos- 
sible to  settle  through  diplomatic  channels  and  which  have  been 
submitted  to  it  by  agreement  between  the  parties,  either  orig- 
inally or  for  review  or  revision,  or  in  order  to  determine  the  rela- 
tive rights,  duties  or  obligations  in  accordance  with  the  finding, 
decisions,  or  awards  of  commissions  of  inquiry  and  specially 
constituted  tribunals  of  arbitration. 

V 

The  judges  of  the  Permanent  Court  shall  be  competent  to 
act  as  judges  in  any  Commission  of  Inquiry  or  Special  Tribunal 
of  Arbitration  which  may  be  constituted  by  any  Power  for  the 
consideration  of  any  matter  which  may  be  specially  referred  to 
it  and  which  must  be  determined  by  it. 

VI 

The  present  Permanent  Court  of  Arbitration  might,  as  far  as 
possible,  constitute  the  basis  of  the  court,  care  being  taken  that 
the  Powers  which  recently  signed  the  Convention  of  1899  are 
represented  in  it.‘ 

' La  Deuxieme  Conference  Internationale  de  la  Paix,  1907,  vol.  II,  First 
Commission,  Annex  11. 


APPENDIX  TO  CHAPTER  IX 


823 


3.  SUGGESTED  COMPOSITION  OF  THE  COURT  OF 
ARBITRAL  JUSTICE.* 

Table  A 

Suggested  composition  of  the  Court  of  Arbitral  Justice,  to 
consist  of  seventeen  judges,  for  each  year  of  the  period  of  twelve 
years,  during  which  the  convention  shall  be  in  force. 

[As  Germany,  United  States,  Austria-Hungary,  France,  Great 
Britain,  Italy,  Japan,  and  Russia  were  to  sit  permanently  in  the 
court  they  are  omitted  from  the  table  and  only  the  countries 
are  given  whose  judges  were  to  sit  in  rotation  for  a longer  or 
shorter  period.] 


Judges 

Deputy  Judges 

Judges 

Deputy  Judges 

1st  Year 

4th  Year 

1 

Argentine 

Brazil 

2 

Belgium 

Chili 

3 

Bolivia 

Cuba 

4 

China 

Denmark 

5 

Spain 

Greece 

6 

Netherlands 

Netherlands 

7 

Roumania 

Portugal 

8 

Sweden 

Siam 

9 

Turkey 

Turkey 

2d  Year 

5th  Year 

1 

Argentine 

Dominican 

Republic 

2 

Belgium 

Ecuador 

3 

China 

Spain 

4 

Columbia 

Mexico 

5 

Spain 

Norway 

6 

Netherlands 

Netherlands 

7 

Roumania 

Servia 

8 

Sweden 

Switzerland 

9 

Turkey 

Turkey 

3d  Year 

6th  Year 

1 

Brazil 

Bulgaria 

2 

Chili 

Spain 

3 

Costa  Rica 

Guatemala 

4 

Denmark 

Haiti 

5 

Spain 

Luxemburg 

6 

Greece 

Mexico 

7 

Netherlands 

Norway 

8 

Portugal 

Persia 

9 

Turkey 

Switzerland 

* La  Deuxi^me  Conference  Internationale  de  la  Paix,  1907,  vol.  II,  First 
Commission,  Ist  Sub-Commission  Committee  of  Examination  B,  Second 
Session,  August  17,  1907. 


1 

2 

3 

4 

5 

6 

7 

8 

9 

1 

2 

3 

4 

5 

6 

7 

8 

9 

1 

2 

3 

4 

5 

6 

7 

8 

9 


APPENDIX 


Judges 

Deputy  Judges 

Judges 

Deputy  Judges 

7th  Year 

10th  Year 

Argentine 

Brazil 

Belgium 

Chili 

China 

Denmark 

Spain 

Greece 

Honduras 

Paraguay 

Netherlands 

Netherlands 

Roumania 

Portugal 

Sweden 

Siam 

Turkey 

Turkey 

8th  Year 

11th  Year 

Argentine 

Spain 

Belgium 

Mexico 

China 

Norway 

Spain 

Netherlands 

Peru 

Netherlands 

Salvador 

Roumania 

Servia 

Sweden 

Switzerland 

Turkey 

Turkey 

9th  Year 

l^th  Year 

Brazil 

Bulgaria 

Chili 

Spain 

Denmark 

Mexico 

Spain 

Montenegro 

Greece 

Norway 

Panama 

Persia 

Netherlands 

Switzerland 

Portugal 

Uruguay 

Turkey 

Venezuela 

APPENDIX  TO  CHAPTER  IX 


825 


Table  B 

The  proposed  arrangement  and  distribution  of  Judges  and 
Deputy  Judges  among  the  Powers  represented  for  less  than  the 
full  period  of  the  convention. 

[It  is  unnecessary  to  insert  the  deputy  judges  of  the  Powers 
continually  represented  because  each  one  of  such  Powers  was  to 
possess  a deputy  judge  for  the  full  period  of  the  Convention.] 


Judges 

Deputy 

Judges 

Judges 

Deputy 

Judges 

Years 

Years 

Years 

Years 

10 

10 

Bolivia 

1 

1 

N pf.h  p.rlanH  R 

10 

10 

Colombia 

1 

1 

Turkey 

10 

10 

Costa  Rica 

1 

1 

Argentine 

4 

4 

Cuba 

1 

1 

Belgium 

4 

4 

Dominican  Re- 

public 

1 

1 

Brazil 

4 

4 

Ecuador 

1 

1 

Chili 

4 

4 

Guatemala 

1 

1 

rihina. 

4 

4 

Haiti 

1 

1 

Dpnmarlc 

4 

4 

Honduras 

1 

1 

Greece 

4 

4 

Luxembiug 

1 

1 

Mexico 

4 

4 

Montenegro. . . . 

1 

1 

4 

4 

Nicaragua 

1 

1 



Portugal 

4 

4 

Panama 

1 

1 

4 

4 

Paraguay 

1 

1 

4 

4 

Peru 

1 

1 

Switzerland 

4 

4 

Salvador 

1 

1 

2 

2 

Uruguay 

1 

1 

Persia 

2 

2 

Venezuela 

1 

1 

Servia 

2 

2 

Siam 

2 

2 

90 

90 

18 

18 

APPENDIX  TO  CHAPTER  XI 


ADDITIONS  PROPOSED  BY  GERMANY  TO  THE  CON- 
VENTION CONCERNING  THE  LAWS  AND  CUSTOMS 
OF  WAR  ON  LAND 

Section  V 

THE  TREATMENT  OF  NEUTRAL  PERSONS  IN  THE  TERRITORY  OF 
BELLIGERENTS. 

CHAPTER  I 

Definition  of  a neutral  person 

Article  61 

The  nationals  of  a State  which  is  not  taking  part  in  a war  are 
considered  as  neutrals. 

Article  62 

A violation  of  neutrality  involves  loss  of  character  as  a neutral 
person  with  respect  to  all  the  belligerents.  There  is  a violation 
of  neutrality — 

a.  If  the  neutral  person  commits  hostile  acts  against  a bel- 
ligerent; 

h.  If  he  commits  acts  in  favor  of  a belligerent,  particularly 
if  he  voluntarily  enlists  in  the  ranks  of  the  armed  forces  of  one 
of  the  parties. 

Article  63 

The  following  acts  shall  not  be  considered  as  committed  in 
favor  of  one  belligerent  in  the  sense  of  Article  62,  Paragraph  (6) : 

a.  Supplies  furnished  or  loans  made  to  one  of  the  belligerents, 
provided  that  they  do  not  come  from  enemy  territory  or  terri- 
tory occupied  by  the  enemy. 

h.  Services  rendered  in  matters  of  police  or  civil  adminis- 
tration, 

CHAPTER  II 

Services  rendered  by  neutral  persons 

Article  64 

Belligerents  shall  not  solicit  neutral  persons  to  render  their 
service,  although  they  (the  interested  persons)  may  consent  to 
it. 


826 


APPENDIX  TO  CHAPTER  XI 


827 


The  following  shall  be  considered  as  services  of  war: 

Any  assistance  by  a neutral  person  in  the  armed  forces  of  the 
belligerents,  in  the  character  of  combatant  or  adviser,  and,  if 
he  shall  have  submitted  to  the  laws,  regulations  or  orders  in 
force  by  the  said  army,  of  other  classes  also,  for  example,  secre- 
tary, servant,  or  cook.  Services  under  guise  of  an  ecclesiast 
and  health  officer  are  excepted. 

Article  65 

Neutral  powers  engage  to  prohibit  their  nationals  from  enlist- 
ing in  the  military  service  of  the  army  of  either  of  the  belligerents. 

Article  66  <; 

Neutral  persons  shall  not  be  obliged,  against  their  will,  to  lend 
services,  not  considered  services  of  war,  to  the  armed  force  of 
either  belligerents. 

It  shall  be  permitted,  nevertheless,  to  demand  sanitary  or 
police  services,  disconnected  with  actual  hostilities.  Such  ser- 
vices shall  be  paid  in  cash,  provided  it  is  possible  to  do  so.  If 
not  paid  in  cash,  the  necessary  formal  receipts  shall  be  given. 

CHAPTER  III 

Concerning  property  of  neutral  persons 

Article  67 

No  war  tax  shall  be  demanded  from  neutral  persons. 

A war  tax  is  deemed  to  be  any  requisition  demanded  expressly 
for  the  purposes  of  the  war. 

The  enforcement  of  laws  and  existing  tolls,  or  of  contribu- 
tions especially  decreed  by  one  of  the  belligerents,  in  the  enemy 
territory  which  it  may  occupy,  for  the  necessities  of  the  adminis- 
tration of  that  territory,  are  not  deemed  to  be  contributions 
of  war. 

Article  68 

The  property  of  a neutral  shall  not  be  destroyed,  misused,  or 
injured  unless  required  by  the  exigencies  of  war.  In  such  event, 
the  belligerent  is  not  obliged  to  pay  an  indemnity  in  its  own 
country  or  in  the  enemy  country,  except  when  the  nationals  of 
another  neutral  country  or  of  his  own  may  enjoy  equal  indem- 
nification and  reciprocity  may  be  guaranteed. 


828 


APPENDIX 


Article  69 

The  belligerent  shall  make  compensation  for  the  use  of  neutral 
real  property,  in  the  enemy  country,  the  same  as  in  its  own 
country,  provided  that  reciprocity  is  guaranteed  in  the  neutral 
State.  In  no  case  shall  this  indemnity  be  greater  than  that 
provided  by  the  legislation  of  the  enemy  country  in  case  of  war. 

Article  70 

Belligerents  may  expropriate  and  use  for  military  purposes, 
and  without  immediate  reimbursement  and  cash  payment,  all 
neutral  movable  property  found  in  its  country. 

They  may  do  the  same  in  enemy  country,  within  the  limits 
and  under  the  conditions  specified  in  Article  52. 

Article  71 

Neutral  vessels  and  their  cargoes  shall  not  be  expropriated 
by  a belligerent,  except  when  they  are  used  for  river  navigation 
within  its  territory  or  within  the  enemy  territory. 

The  indemnity  shall  equal,  in  the  event  of  expropriation,  the 
actual  valuation  of  the  vessel  and  of  the  cargo  and  10  per  cent 
more.  In  the  event  of  the  employment  of  the  vessel,  the  com- 
pensation shall  be  10  per  cent  more  than  the  customary  freight- 
These  payments  shall  be  made  immediately  and  in  cash. 

Article  72 

Indemnity  for  the  destruction  or  injury  of  neutral  personal 
property,  due  solely  to  their  use  for  military  purposes,  shall  be 
regulated  in  conformity  with  the  principles  established  in 
Articles  70  and  71.^ 


‘ La  Deuxi^me  Conference  Internationale  de  la  Paix,  1907,  vol.  Ill,  pp. 
268-270. 


APPENDIX  TO  CHAPTER  XII 


DRAFT  OF  REGULATIONS  CONCERNING  THE  LAYING 
OF  AUTOMATIC  SUBMARINE  CONTACT  MINES 

Aeticle  1. 


It  is  forbidden: 

1.  To  lay  unanchored  automatic  contact  mines  which  do 
not  become  harmless  one  hour  at  most  after  the  person  who 
laid  them  ceases  to  control  them; 

2.  To  lay  anchored  automatic  contact  mines  which  do  not 
become  harmless  as  soon  as  they  have  broken  loose  from  their 
moorings; 

3.  To  use  torpedoes  which  do  not  become  harmless  when 
they  have  missed  their  mark. 

Article  2. 

It  is  forbidden  to  lay  anchored  automatic  contact  mines 
beyond  a distance  of  three  nautical  miles  from  high  water  mark, 
throughout  the  length  of  the  coast  line,  as  well  as  along  the 
islands  and  islets  adjacent  thereto. 

In  the  case  of  bays,  the  zone  of  three  nautical  miles  shall  be 
measured  starting  from  a straight  line  drawn  across  the  bay  in 
its  part  nearest  the  entrance  at  the  first  point  where  the  open- 
ing does  not  exceed  ten  miles  in  width. 

Article  3. 

The  limit  for  the  laying  of  anchored  automatic  contact  mines 
is  extended  to  a distance  of  ten  nautical  miles  off  military  ports 
and  ports  where  there  are  either  military  arsenals  or  establish- 
ments of  naval  construction  or  repair. 

As  military  ports  are  considered  those  ports  which  have  been 
decreed  as  such  by  the  Nation  to  which  they  belong. 

829 


830 


APPENDIX 


Article  4. 

Off  the  coasts  and  ports  of  their  adversaries,  the  belligerents 
may  lay  anchored  automatic  contact  mines  within  the  limits 
indicated  in  the  two  preceding  articles. 

However,  they  shall  not  exceed  the  limit  of  three  nautical 
miles  off  ports  which  are  not  military  ports,  unless  establish- 
ments of  naval  construction  or  repair  belonging  to  the  Nation 
are  situated  therein. 

It  is  forbidden  to  lay  automatic  contact  mines  off  the  coasts 
and  ports  of  the  enemy  for  the  sole  purpose  of  intercepting 
commercial  shipping. 


Article  5. 

Within  the  sphere  of  their  immediate  activity,  the  belligerents 
have  likewise  a right  to  lay  anchored  automatic  contact  mines 
outside  the  limits  fixed  in  Articles  2 to  4 of  the  present  Regula- 
tions. 

Mines  used  outside  the  limits  fixed  in  Articles  2 to  4 must  be 
so  constructed  as  to  become  harmless  within  two  hours  at  most 
after  the  person  using  them  has  abandoned  them. 

Article  6. 

When  anchored  automatic  contact  mines  are  used,  all  pos- 
sible precautions  should  be  taken  to  insure  safety  of  navigation. 

The  belligerents  undertake,  in  case  these  mines  should  cease 
to  be  under  surveillance,  to  notify  the  danger  zones  as  soon  as 
possible  by  a notice  to  shipowners,  communicated  also  to  the 
Governments  through  the  diplomatic  channel,  and  to  do  their 
utmost  to  render  them  harmless  within  a limited  time. 

Article  7. 

Any  neutral  Nation  which  lays  automatic  contact  mines  off 
its  coasts  must  observe  the  same  rules  and  take  the  same  pre- 
cautions as  are  imposed  on  belligerent  Nations  in  the  use  of 
similar  mines. 

However,  a neutral  Nation  shall  not  anchor  mines  outside 
the  limits  indicated  in  Article  2. 

A neutral  Nation  must  make  known  to  shipowners,  by  a 


APPENDIX  TO  CHAPTEK  XII 


831 


previous  notice,  the  localities  in  which  automatic  contact  mines 
are  to  be  anchored.  Such  notice  shall  be  communicated  without 
delay  to  the  Governments  through  diplomatic  channels. 

I 

I 

Article  8. 

At  the  end  of  the  war,  at  the  latest,  the  Signatory  Nations 
I shall  be  obliged  to  do  all  in  their  power  to  remove,  respectively, 
the  mines  which  they  have  each  laid. 

As  regards  anchored  automatic  contact  mines  which  one  of 
the  belligerents  may  have  laid  along  the  coasts  of  the  other,  the 
Signatory  Nations  agree  to  notify  the  other  party  of  their 
location,  and  each  Nation  must  proceed,  with  the  least  possible 
delay,  to  remove  the  mines  situated  in  its  waters. 

Article  9. 

The  Signatory  Nations  which  do  not  yet  possess  improved 
mines  such  as  are  prescribed  in  the  present  Regulations,  and 
which  are  consequently  unable  to  observe  the  rules  laid  down  in 
Articles  1 and  6,  agree  to  transform  their  stock  of  mines  as 
soon  as  possible  in  order  to  make  them  conform  to  the  afore- 
j mentioned  rules. 

Until  a belligerent  has  become  supplied  with  mines  constructed 
I so  as  to  fulfill  the  conditions  of  Article  5,  paragraph  2,  he  is  for- 
1 bidden  to  lay  anchored  automatic  contact  mines  outside  the 
! limits  fixed  in  Articles  2 to  4. 

i It  is  forbidden  to  use  unanchored  automatic  contact  mines 
i which  do  not  fulfill  the  condition  stipulated  in  Article  1,  para- 
graph 1,  one  year  after  the  present  Convention  goes  into  force. 

Article  10. 

The  stipulations  of  the  present  Convention  are  concluded  for 
a period  of  5 years  from  the  date  on  which  the  present  Conven- 
tion takes  effect. 

The  Signatory  Powers  express  the  hope  that  they  may  have 
occasion  to  resume  consideration  of  the  question  of  the  use  of 
submarine  mines  before  the  expiration  of  the  period  provided 
in  the  foregoing  paragraph.^ 

^ La  Deuxieme  Conf&ence  Internationale  cle  la  Paix,  1907,  Vol.  Ill,  pp. 
427-428. 


INDEX  TO  VOLUMES  I AND  II 

(Page  numbers  preceded  by  u refer  to  Volume  II;  other  pages  refer  to  Volume  I.) 


Abdullah  Pasha,  General,  delegate 
of  Turkey  to  first  conference, 
ii75 

Abolition  of  privateering,  574,  ii222- 
223 

Abolition  of  rights  of  action,  535, 
m205;  m387-389 

Absolute  and  conditional  declara- 
tions of  war,  519 

Absolute  contraband,  French  list 
of,  accepted,  716 

Absolute  rights  at  international 
conference,  38 

Absorption  of  Korea  by  Japan,  88 

Abuse  of  flags  of  truce,  iilSl 

Acquaintances  at  the  conferences, 
180-181 

Active,  Sloop,  controversy  over, 
510 

Acts  of  war,  m49 

Adaptation  to  naval  war  of  princi- 
ples of  Geneva  Convention:  dis- 
cussed, 599-614;  in  Russian  circu- 
lar, Jan.  11,  1899,  m4;  instruc- 
tions to  first  conference,  US;  dis- 
cussion in  first  conference,  6^64; 
report  delegation  to  first  con- 
ference, m20-21,  26;  discussion  in 
first  conference,  63-64 ; in  Russian 
circular  of  Apr.  12,  1906,  fil77; 
discussion  in  second  conference, 
133;  Capt.  Mahan’s  additional 
articles,  m45-46;  report  of  dele- 
gation to  second  conference, 
n226-227‘  convention  of  1899, 
m143-151;  convention  of  1907, 
M447-463;  reservations  to  con- 
vention of  1907,  m539;  consent  of 
Senate  to  ratification,  M463re 

Additional  articles  of  Capt.  Mahan 
to  convention  of  1899  for  adapta- 
tion to  naval  war  of  Geneva  (Con- 
vention, m'45-46 

Additional  articles  to  convention 
respecting  laws  and  customs  of 
war  on  land,  551-554 

Additional  articles  to  Geneva  Con- 
vention,600-602  : effect  in  develop- 
ment international  conference, 
20,  22;  extended  to  naval  war, 
600;  not  adopted,  601 


Additions  to  convention  of  1899  for 
adaptation  to  naval  war  of  princi- 
ples of  Geneva  Convention,  Rus- 
sian circular  April  12,  1906,  m177 
Addresses  at  conference  inserted  in 
full  in  minutes,  122 
Adee,  A.  A.,  mentioned,  640 
Adeline,  The  (9  Cranch  244), 
quoted,  470 

Adherence  of  non-signatory  states 
to  convention  of  1899:  for  peace- 
ful settlement  international  dis- 
putes, provision  of  convention, 
m109;  report  of  delegation  to  first 
conference,  discussed,  97-98;  cor- 
respondence concerning,763;  Unit- 
ed States  circular  of  Oct.  21, 1904, 
m171-172;  instructions  to  dele- 
gates to  Third  Pan-American 
Conference,  762;  Russian  circular 
April  12,  1906,  m178-179;  United 
States  circular  of  March  5,  1907, 
763 ; Mr.  Hill  to  Secretary  of  State, 
April  18,  1907,766;  Netherlands 
Government  to  Secretary  of  State 
May  7,  1907,  768;  Secretary  of 
State  to  Netherlands  Govern- 
ment, May  11,  1907,  769;  instruc- 
tions to  delegation  to  second  con- 
ference, m192;  correspondence 
concerning  protocol,  99-100;  pro- 
tocol permitting,  770,  u252-253; 
proces-verbal  of  adherence,  772, 
m254-255;  report  delegation  to 
second  conference,  m200 
Adherence  of  non-signatory  powers 
to  convention  of  1899  with  re- 
spect to  laws  and  customs  of  war 
on  land,  m115 

Adherence  of  non-signatory  powers 
to  convention  of  1899  for  adapta- 
tion to  naval  war  of  Geneva  (Con- 
vention, m151 

Adherence  of  non-signatory  powers 
to  conventions  and  declaration 
of  1907,  m353,  m359,  m365,m373, 
m413,  m419,  m427,  n435,  u443, 
n469f  m499,  m521,  m525-527, 
m461 

Adhesions  to  conventions  of  1907, 
register  of,  0355,  m361,  n367, 


833 


834 


INDEX 


m375,  m413,  m421,  m427,  m437, 
n445,  m463,  m471,  m523 
Adjustment  of  international  claims 
and  means  employed,  388-392 
Administrative  council  of  court  of 
arbitral  justice,  m297 
Administrative  council  of  [perma- 
nent court  of  arbitration,  m95 
Admission  of  Latin-America  to 
second  conference,  correspon- 
dence concerning,  761 
Admission  of  prizes  to  neutral  ports, 
report  of  delegation  to  second 
conference,  m240-241 
Admission  of  public  to  conferences, 
122 

Adula,  The,  decision  in,  followed 
decision  in  The  Circassian,  499 
Aerial  warfare,  discussed,  649-654 
See  Balloons 

Agents  before  court  of  arbitral  jus- 
tice: may  not  act  as  judge,  m295, 
447 

Agents  before  international  com- 
mission of  inquiry,  m3  17;  exami- 
nation of  witnesses  by,  m321, 
271;  investigation  in  presence  of, 
tf319,  270;  presentation  of  state- 
ments, requisitions  or  summaries 
of  facts  by,  m323,  272;  witnesses 
heard  in  presence  of,  iiZ2l,  271 
Agents  before  international  prize 
court,  m487;  may  not  act  as 
judge,  m483;  speeches  may  be 
suspended  to  obtain  supplemen- 
tary evidence,  m491 
Agents  before  permanent  court  of 
arbitration,  filOl,  m341,  294-295; 
not  to  be  members  of  court,  m341, 
294-295;  may  be  questioned  by 
judges,  m103,  m343,  298,  299; 
may  present  arguments,  m103, 
w343,  299;  may  raise  objections 
m103,  m343,  299;  award  read  be- 
fore, m105,  ff347,  300 
Agents  before  tribunal  of  summary 
procedure,  m351,  302-303 
Agreement  between  Great  Britain 
and  United  States  concerning 
naval  force  on  Great  Lakes, 
670n 

Agricultural  assets  in  occupied  terri- 
tory, m139,  m401,  539 
Aix-la-Chappelle,  regulations  of, 
concerning  diplomatic  agents, 
mentioned,  1571 

Akiyama,  Yoshifuru,  Major-General, 
Japanese  delegate  to  second  con- 
ference, m273 


Alabama,  battle  with  Kearsarge 
mentioned,  610 

Alabama  claims:  discussed,  241; 
arbitration  of,  mentioned,  319; 
involved  honor  and  vital  interests, 
319,  329 

Alexander  II,  called  Conference  of 
St.  Petersburg,  21 
Aliens,  neutral.  See  Neutral  Per- 
sons 

Allen,  William,  mentioned,  682 
Alsua,  Enrique  Dorn  y de,  delegate 
of  Ecuador,  m267 
Ambassadors,  foreign,  report  of 
Capt.  Crozier  on,  m51 
Ambassadors  in  delegations  to  con- 
ference, 170-171 

Ambulances,  599 ; include  field  hospi- 
tals, 601;  Red  Cross  flag  adopted 
for,  599;  salary  of  personnel 
of,  falling  into  hands  of  enemy, 
601 

Amelioration  of  war,  necessity  for, 
523-524 

Amendment  of  Capt.  Crozier  con- 
cerning explosive  bullets,  62n 
Amendments,  voting  upon,  120 
Amendments  of  Capt.  Mahan  to 
conventions  for  adaptation  to 
naval  war  of  principles  of  Geneva 
Convention,  609 
America.  See  United  States 
American  court  of  arbitration  under 
Articles  of  Confederation,  428- 
430,  460-464 

American  delegation.  See  United 
States  delegation 

American  forerunner  of  interna- 
tional court  of  prize,  509-511 
American  Journal  of  International 
Law  referred  to,  97i 
American  Peace  Society:  mentioned, 
682;  petition  to  Massachusetts 
Legislature  mentioned,  89;  peti- 
tion printed,  757 

American  project  of  court  of  arbi- 
tral justice  described,  441 
American  proposal  of  1899  for  an 
international  tribunal,  799 
Ames,  Fisher,  mentioned,  211 
Ammimition:  export  or  transit  of 
from  neutral  state,  m238;  neu- 
trals not  to  supply  belligerents 
with,  m238,  m511,  625;  in  occu- 
pied territory,  77399 
Amourel,  General,  French  delegate 
to  second  conference,  77269;  per- 
sonality at  second  conference, 
158-159 


INDEX 


835 


Amy  Warwick,  The  (2  Sprague), 
quoted,  471 

Analogy  between  growth  of  com- 
mon law  and  law  of  nations,  1-7 
Andre,  Major,  mentioned,  537 
Anglo-American  practice  concern- 
ing blockades,  722 
Annex  A to  instructions  to  delega- 
tion to  first  conference,  m9-14 
Annex  B to  instructions  to  delega- 
tion to  first  conference,  nl5-16 
Annuaire  de  I’lnstitut,  mentioned, 
30 

Anstey,  John,  mentioned,  218 
Antelope,  The,  cited,  163 
Appeal,  no,  from  award  of  per- 
manent court  of  arbitration, 
m105,  m347,  300 

Appeals  to  international  prize  court, 
u475,  m477,  m487,  m489,  u491, 
m495,  473-484,  487,  488 
Appendix  to  Chapter  I,  753,  to 
Chapter  III,  757,  to  Chapter  V, 
776,  to  Chapter  VI,  781,  to 
Chapter  VII,  803,  to  Chapter  IX, 
820,  to  Chapter  XI,  826,  to  Chap- 
ter XII,  829 

Application  of  rules  of  land  war- 
fare to  naval  warfare:  discussion 
in  commission,  135;  recommen- 
dation of  conference,  m289 
Apponyi,  Cmmt,  mentioned,  90 
Arago,  Rear-Admiral,  French  dele- 
gate to  second  conference,  m269; 
personality  at  second  conference, 
159 

Arbitral  award.  See  Award 
Arbitral  procedure,  286-312;  agree- 
ment to  rules  of,  ii%7,  m335;  in 
Greece,  198-199;  in  middle  ages, 
207;  see  Summary  arbitral  pro- 
cedure; when  sovereign  is  arbi- 
trator, m99,  m339 
Arbitral  tribunal,  composition  of, 
216-224;  impartiality  of,  284; 
vmder  Jay’s  Treaty  of  1794,  216- 
218 

Arbiter.  See  Arbitrator 
Arbitration:  and  the  permanent 
court  discussed,  274-286;  Ameri- 
can court  of,  imder  Articles  of 
Confederation,  428-430,  460-464; 
among  Asiatic  peoples,  195;  be- 
tween Austria,  France,  Great 
Britain,  Prussia  and  Russia  under 
treaty  of  1842,  234;  between 
France  and  Great  Britain  of  Por- 
tendic  claims  under  treaty  of 
1842,  234;  between  France  and 
Great  Britain  under  treaty  of  1815, 


233;  between  France  and  Holland 
under  treaty  of  1813,  233;  be- 
tween Great  Britain  and  Greece 
of  Don  Pacifico  case,  235;  be- 
tween Great  Britain  and  Sweden, 
215;  between  Swiss  cantons  of 
Tessin  and  Uri,  233;  between 
United  States  and  France  under 
treaty  of  1803,  230,  imder  treaty 
of  1880,  243-244;  between  United 
States  and  Great  Britain  of  Ber- 
ing Sea  question,  244^246,  under 
Jay’s  Treaty,  475,  under  treaty 
of  1814,  231,  under  treaty  of 
1818,  231-232,  under  treaty  of 
1871,  240-243,  475,  477-479; 
between  United  States  and 
Mexico  imder  treaty  of  1868, 
243-244;  between  United  States 
and  Spain  under  treaty  of  1895, 
229,  under  treaty  of  1802,  229; 
Bourgeois’  remarks  on,  at  first 
conference,  68-69;  by  commis- 
sion and  individual  or  sovereign, 
219,  223;  by  commission  con- 
trolled by  foreigners,  222-223; 
by  commission  for  navigation  of 
the  Rhine,  233;  by  summary 
procedure,  fi349-351,  302-303; 
Cromwell’s  treaties  of,  212-215; 
instances  in  which  commissions 
were  employed,  204;  classifica- 
tion of  subjects  submitted  to, 
247 ; creation  of  public  opinion  in 
favor  of,  248-249;  distinction  be- 
tween, and  good  ofiices  and  medi- 
ation, 188,  319-321,  in  middle 
ages,  208-209;  distinction  be- 
tween, and  judicial  proceedings, 
188;  eflBcacy  of,  252-253;  exam- 
ples of,  229-253;  from  Middle 
Ages  to  Jay’s  Treaty,  200-210; 
from  Jay’s  Treaty,  210-216; 
general  treaty  of,  desired  by 
second  conference,  333 ; history 
of  proposition  for  in  United  States, 
m9-14;  instructions  to  delegation 
to  second  conference  concerning 
general  treaty  of,  m189-190;  Ger- 
man opposition  to  at  first  con- 
ference, 75-76,  342n,  ideal  tri- 
bunal of,  223;  instructions  to 
delegation,  m8;  in  ancient  world, 
194-200;  in  eighteenth  century, 
209-210;  in  early  England,  193; 
in  Greece,  195-199;  in  Greek  pri- 
vate law,  189 ; in  middle  ages,  207 ; 
in  nineteenth  century,  224-229; 
in  Persia,  195;  in  Rome,  189, 
199-200,  international,  in  oon- 


830 


INDEX 


vention  of  1899,  m89-107,  in 
convention  of  1907,  m325-351, 
277 ; limitation  of,  224,  248, 247 ; 
nature,  origin  and  practice  of, 
188-253;  object  of,  m89,  m325, 
275,  309-310;  Roumanian  res- 
ervation concerning  object  of, 
nl65-167;  of  cases  decided  by 
United  States  courts,  497;  pas- 
toral letter  of  P.  E.  Bishop  of 
Texas  concerning,  76-77n;  pro- 
gram of  first  conference  in- 
cluded, m4-5;  participation  of 
each  state  in,  226;  policy  of 
United  States  toward,  246;  pro- 
posal, American,  for  international 
court  of,  799,  m15-16;  proposal, 
British,  of  1899,  796;  proposal, 
Russian,  of  code  of  arbitration, 
789;  proposal,  Russian,  concern- 
ing international  arbitration,  803; 
proposal,  Russian,  of  1899  con- 
cerning tribunal  of,  794;  recog- 
nized as  best  means  of  settling 
international  disputes,  310,  423, 
m89;  recognized  by  Congress  of 
Vienna,  23^3;  report  of  delegation 
to  first  conference,  m21;  report 
of  Messrs.  White,  Low  and  Holls 
on,  m52-60;  Roman  judicial  sys- 
tem developed  from,  190-193; 
sentiment  in  favor  of  a factor 
that  makes  for  peace,  694;  special 
arbitration,  m333;  system  of, 
m89-91,  W325-327,  274-286; 

treaties  of,  concluded  in  17th 
and  18th  centuries,  205;  treaties 
of,  interpretation  of,  submitted 
to,  W165-167;  n327,  275-276; 
treaties  of,  since  first  Hague  con- 
ference, 808;  treaties  of,  to  be 
communicated  to  international 
bureau,  m91,  m329,  281;  treaty 
of,  between  England  and  France 
1655,  214;  treaty  of,  between 
England  and  Holland,  1654,  212- 
213;  treaty  of,  between  England 
and  Portugal  1654,  214;  treaty 
of,  between  United  States  and 
France  mentioned,  251;  treaty 
of,  between  United  States  and 
Mexico  quoted,  251;  treaty  of, 
general,  desired  by  second  con- 
ference, 333;  treaty  of,  general, 
instructions  to  delegation  to 
second  conference,  m189-190. 
See  Peaceful  Settlement  of  Inter- 
national Disputes;  Court  of  Arbi- 
tral Justice;  International  Com- 
missions of  Inquiry;  Summary 


procedure;  Compulsory  Arbitra- 
tion. 

Arbitrator,  distinction  between  judge 
and,  189 

Arbitrators,  bishops  as,  instances 
of,  203;  cities  as,  instances  of, 
204;  emperors  as,  instances  of, 
203;  jurists  as,  instances  of,  204; 
kings  as,  instances  of,  203;  noti- 
fication of  names  of,  to  inter- 
national bureau,  m331,  284;  popes 
as,  instances  of,  202;  selection  of, 
m93-95,  m99,  m208-209,  m331, 
M337-339,  m349,  283,  293,  302; 
should  be  lawyers,  222;  sovereign 
as,  222n 

Archives:  of  international  commis- 
sion of  inquiry,  m317;  of  inter- 
national prize  court,  m485;  of 
permanent  court  of  arbitration, 
u91,  n329,  281 

Ardagh,  J.  C.,  Sir,  delegate  of 
Great  Britain  to  first  conference, 
n69;  personality  of,  148;  promi- 
nent delegate,  150 

Argentine  Republic:  delegation, 
m259;  personnel  of  delegation, 
157;  treaty  with  Chile  of  May  28, 
1902,  mentioned,  666;  reserva- 
tions to  conventions  of  1907, 
m533,  m537;  supported  court  of 
arbitral  justice,  434-435;  favored 
British  contraband  proposition, 
712 

Ariga,  Nagao,  Japanese  delegate  to 
first  conference,  m'69 

Aristotle  quoted,  189 

Armaments,  limitation  of,  discussed, 
61,  653-671;  interview  with 

Count  Mouravieff  concerning,  in 
program  of  first  conference,  41n; 
in  Russian  rescript  of  August 
1898,  653,  m1-2;  in  Russian  cir- 
cular of  Jan.  11,  1899,  n4,  655; 
instructions  to  delegation  to  first 
conference,  m7;  in  first  commis- 
sion of  first  conference,  54-62; 
declaration  of  American  delega- 
tion to  first  conference,  wl9; 
Russian  proposals  concerning,  at 
first  conference,  55-56,  656;  rec- 
ommendation of  first  conference, 
u79,  referred  to,  661;  report  of 
delegation  to  first  conference, 
m19,  u27;  report  of  Capt.  Mahan, 
u37-39;  attitude  of  delegation  to 
first  conference  concerning,  57-59, 
661;  present  armaments  not  con- 
sidered at  first  conference,  41n; 
not  included  in  program  of 


INDEX 


837 


second  conference,  663,  m176; 
reservation  of  Great  Britain  to 
program  concerning,  105-106, 
m182;  reservation  of  Spain  to 
program,  105-106,  ffl82;  reser- 
vation of  United  States,  102-106, 
663,  m182,  m186,  m189;  instruc- 
tions to  delegation  to  second  con- 
ference, m186-187  ; recommen- 
dation of  second  conference  dis- 
cussed, 136,  669 

Arm  badge  worn  by  hospital  per- 
sonnel, 599 

Armed  combatants  and  non-com- 
batants treated  as  prisoners  of 
war,  ii\n 

Armistices,  ^133-135,  m393-395, 
537 ; communications  during, 
m133,  if 395;  general  and  local, 
if  133,  m395;  military  operations 
suspended  by,  m133,  m393;  noti- 
fication of,  m133,  m395;  violation 
of,  if  133,  m135,  m395;  report  of 
Captain  Crozier,  m50 

Arms;  depots  of,  may  be  destroyed 
by  naval  force  after  summons, 
2i439;  depots  of,  in  occupied  terri- 
tory, m139,  m399;  neutral  power 
not  bound  to  prevent  export  of, 
m238,  m405,  545;  sale  of,  by 
United  States  to  France  during 
war  with  Prussia,  628;  which 
cause  superfluous  injury  prohib- 
ited, m127,  m387-389,  535 

Armstrong,  The  General,  referred 
to,  235-236,  623 

Art,  buildings  devoted  to,  not  to  be 
bombarded,  ii389,  535;  to  be 
indicated  by  visible  signs,  mT29, 
m389,  m441,  536,  592n,  597; 
seizure  of,  in  occupied  territory, 
forbidden,  wl39,  m401,  539;  works 
of  art,  report  of  Captain  Crozier 
on  destruction  of,  w51 

Articles  of  Confederation:  Ameri- 
can court  of  arbitration  under, 
428-430,  460-464;  extract  from 
Article  9,  816;  provision  for  prize 
court  in,  510 

Asiatic  peoples,  arbitration  among, 
195 

Asphyxiating  gases.  See  Gases 

Asser,  T.  M.  C.:  Netherlands  dele- 
gate to  first  and  second  confer- 
ences, u71,  ii277;  discussion  of 
compulsory  arbitration  at  first 
conference,  324;  judge  in  Pious 
Fimd  Case,  313;  mentioned,  132; 
on  sub-committee  to  consider  ef- 
fect of  arbitral  award, 345;  person- 


ality of,  at  first  conference,  148, 
150,  152,  154,  at  second  confer- 
ence, 160-161;  president  second 
commission,  second  conference, 
115;  translated  M.  Kriege’s 
speeches,  123;  statement  con- 
cerning effect  of  arbitral  award, 
344 ; statement  concerning  court  of 
of  arbitration  of  1899,  426;  sug- 
gestion concerning  effect  of  arbi- 
tral award,  346 

Assessors;  may  be  appointed  for 
international  commission  of  in- 
quiry, m315;  naval  officers  to  sit 
as,  in  international  prize  court, 
m483;  judgment  of  international 
prize  court  gives  names  of,  m‘495 
Association  for  Codification  of  In- 
ternational Law,  248-249 
Athens,  mentioned,  681 
Atlanta,  The,  cited,  578 
Atlay,  J.  B.,  mentioned,  572w 
Attorney  to  represent  private  per- 
sons before  international  prize 
court,  quahfications  of,  n487 
Aube,  Admiral,  article  in  Revue  des 
Mondes,  mentioned,  589 
Austria-Himgary;  arbitration  with 
France,  Great  Britain,  Prussia 
and  Russia  under  treaty  of  1815, 
233;  attitude  toward  compulsory 
arbitration,  342;  project  of  com- 
pulsory arbitration,  342;  resolu- 
tion concerning  compulsory  arbi- 
tration considered,  376;  attitude 
toward  collecting  contract  debts, 
413;  favored  British  contraband 
proposition,  712;  attitude  toward 
place  of  transformation  of  mer- 
chant vessels  into  warships,  576; 
delegates  to  first  conference,  m63; 
delegates  to  second  conference, 
m261;  personaUty  of  delegates  to 
first  conference,  146;  personality 
of  delegates  to  second  conference, 
157-158;  judges  on  international 
prize  court  sit  permanently,  w481 ; 
reply  to  Secretary  Hay’s  note 
concerning  holding  second  con- 
ference, 92;  reservation  to  con- 
vention respecting  the  laws  and 
customs  of  war  on  land,  w537; 
reservation  to  program  of  sec- 
ond conference,  105-106;  reply 
to  United  States  circular  of  Dec. 
16,  1904,  wl73 

Automatic  submarine  mines.  See 
Mines 

Auxiliary  vessel  in  British  proposi- 
tion concerning  contraband,  711 


838 


INDEX 


Award,  arbitral:  copies  communi- 
cated to  International  Bureau, 
m91,  n329,  281;  distinction  be- 
tween judgment  and,  189,  498; 
effect  of,  m107,  fi349,  301,  344r- 
347;  formalities  of  award  of  per- 
manent court,  m105,  m347,  299; 
execution  of,  m89,  m325,  275,  310; 
documents  showing  execution  of, 
communicated  to  International 
Bureau,  n91,  m329,  281;  impar- 
tiality of,  218,  221;  interpretation 
of,  m347,  300;  read  in  public  be- 
fore agents  and  coimsel,  m105, 
m347,  300;  relation  to  national 
judgment,  344-347;  revision  of, 
compromis  may  reserve,  m107, 
m349,  300 ; discussion  at  first  con- 
ference, 81,  insisted  on  by  Ameri- 
can delegation,  300-301;  pro- 
posals of  Russia  and  United 
States  at  first  conference,  81; 
under  contract  debt,  convention, 
M337-359,  418-420 

Baguer,  Arthur  de,  Spanish  dele- 
gate to  first  conference,  m65 

Baldwin,  Simeon  E.,  article  of, 

Balfour,  Mr.,  cited,  402 

Balkan  States:  attitude  toward 
convention  for  peaceful  settle- 
ment of  international  disputes, 
78,  304;  opposition  to  interna- 
tional commissions  of  inquiry, 
77-78,  307 

Balloons,  cannot  attack  towns, 
villages,  etc.,  m2  16 

Balloons,  throwing  of  projectiles 
and  explosives  from:  in  Russian 
circular  Jan.  11,  1899,  m4;  in- 
structions to  delegation  to  first 
conference,  m7-8;  discussion  in 
first  conference,  59-61,  649;  re- 
port of  American  delegation, 
m19-20,  m26;  report  of  Captain 
Crozier,  m31;  report  of  Captain 
Mahan,  m36-39;  declaration  of 
1899,  m153;  in  Russian  circular 
of  April  12,  1906,  m176;  report  of 
delegation  to  second  conference, 
m242;  in  second  commission  of 
second  conference,  132;  attitude 
of  France,  Great  Britain,  Italy, 
Roumania  and  Russia  toward, 

651- 652;  vote  upon  declaration, 

652- 653;  declaration  of  1907, 
ii525-527;  consent  of  Senate  to 
ratification  of,  m527w;  subject  re- 
ferred to,  651,  653 


Barantzew,  Count,  Russian  dele- 
gate to  first  conference,  m73 
Barbosa,  Ruy,  delegate  of  Brazil, 
m263;  address  on  contract  debts, 
411-412;  in  debate,  177;  manner 
of  delivering  addresses,  174;  men- 
tioned, 704;  personality,  157, 
169;  presented  project  for  court 
of  arbitral  justice,  437 
Barra,  Francisco  L.  de  la,  Mexican 
delegate,  m275;  presented  com- 
pulsory arbitration  treaty,  332; 
supported  court  of  arbitral  jus- 
tice, 434rA35 

Bartholdt,  Richard,  mentioned,  90 
Easily,  M.  de,  Russian  delegate  to 
first  conference,  m73;  personality, 

151- 152 

Bates,  Joshua,  opinion  in  The 
Creole  referred  to,  238;  men- 
tioned, 237 

Battles,  number  of  killed  in,  523n 
Bavaria,  represented  at  first  con- 
ference by  Prof.  Stengel,  146n 
Bayard,  Mr.,  cited,  403 
Baynes,  John,  quoted  concerning 
Dr.  FrankUn,  691,  692 
Beale,  Joseph  H.,  quoted,  167i 
Beaufort,  W.  H.  de,  honorary  presi- 
dent first  conference,  49;  speech 
on  opening  first  conference,  48-49; 
Netherlands  delegate  to  second 
conference,  m277;  personality  at 
second  conference,  160-161 
Beemaert,  Auguste,  Belgian  dele- 
gate to  first  and  second  confer- 
ences, m65,  m261  ; mentioned,  132, 
134,  649;  personality,  146-147, 

152- 154,  158;  president  second 
commission,  second  conference, 
115,  m203;  proposed  at  first  con- 
ference articles  concerning  prison- 
ers of  war,  535n;  speech  at  first 
conference  quoted,  95;  speech  in 
opposition  to  court  of  arbitral 
justice,  435;  statement  concern- 
ing armaments,  54 

Beethoven,  mentioned,  681 
Behr,  Captain,  Russian  delegate  to 
second  conference,  m281 
Beldiman,  Alexandre,  Roumanian 
delegate  to  first  and  second  con- 
ferences, m73,  m279;  discussion 
of  compulsory  arbitration,  352; 
objections  to  international  com- 
mission of  inquiry,  77-78,  307; 
mentioned,  414n;personality,  161; 
proposed  that  contract  debts  be 
included  in  separate  convention. 


INDEX 


839 


414;  remarks  concerning  M.  Des- 
camps’ report,  117n 

Belgium:  attitude  toward  compul- 
sory arbitration,  342 ; delegates 
to  first  conference,  m65,  to  second 
conference,  m261;  personality  of 
delegates  to  second  conference, 
158;  favored  British  contraband 
proposition,  712;  proposed  re- 
newal of  declaration  prohibiting 
throwing  of  explosives  and  pro- 
jectiles from  balloons,  651;  rea- 
son for  abstention  from  contract 
debt  convention,  413,  view  con- 
cerning rights  and  duties  of  neu- 
tral powers,  543 

Belligerent  ships  in  neutral  ports: 
in  Russian  circular  of  April  12, 
1906,  m176;  in  third  commission, 
second  conference,  133-134;  de- 
parture, m513-515,  637-639;  fuel 
and  coal  supplies,  m237,  m239- 
240,  m515,  w517,  641-644;  intern- 
ment of,  m241,  n517,  646-647; 
notification  to  leave,  w513,  636; 
number  allowed  at  one  time, 
fi239,  m513,  637;  pilots  may  be 
employed,  m239;  refugee  ships, 
nl71;  regulations  concerning  to 
be  exchanged,  m241,  w519,  648; 
regulations  to  be  impartially  ap- 
plied, m238,  m511,  632;  recruiting 
not  allowed,  m515,  639-641;  re- 
pairs to,  m239,  m515,  639-640; 
supplies  not  to  be  replenished, 
m515,  640-641;  twenty-four  hour 
stay,  m239,  m513,  633-636;  war- 
ships not  subject  to  convention, 
m513,  636-637 

Belligerent  ships  passing  through 
territorial  waters,  m238-239  ; pilots 
allowed,  n239 

Belligerents:  as  parties  before  in- 
ternational prize  court,  m475, 
485-487;  authority  over  hospital 
ships,  wl45,  m449,  605;  interned 
in  neutral  territory,  m51,  m141, 
n218,  m407^09,  546-547;  sick 
and  wounded  in  neutral  territory, 
same  as  interned  in  neutral  terri- 
tory; sick  and  wounded  after 
engagement,  m457,  612,  612n; 
qualifications  of,  m47-48,  m117, 
u214,  m377,  528-532 

Bentham’s  Plan  for  a Universal  and 
Perpetual  Peace,  discussed,  745, 
749;  quoted,  31,  32 

Bering  Sea  Arbitration,  controlled 
by  foreigners,  222-223 ; referred  to, 
244-246 


Berlin,  See  Congress  of 
Betsey,  The,  mentioned,  218 
Bianco,  Chevalier  Auguste,  Italian 
delegate  to  first  conference,  m69 
Bihourd,  Georges,  French  delegate 
to  first  conference,  ii&l 
Bishops  as  arbitrators,  instances  of, 
203 

Bildt,  Baron  de,  delegate  of  Sweden 
and  Norway  to  first  conference, 
ii75 

Bille,  Chamberlain,  Fr.  E.  de,  dele- 
gate of  Denmark  to  first  con- 
ference, m65 

Binnenhof,  second  conference  as- 
sembled in,  w201,  107 
Blaine,  James  G.,  cited,  403;  men- 
tioned, 8,  24,  733;  to  Mr.  Osborn, 
Nov.  29,  1881,  concerning  First 
International  Congress  of  Ameri- 
can States,  753 
Block,  de,  mentioned,  34 
Blockade:  discussed,  717-725; 

Brazilian  amendment,  723-724; 
connection  between  immunity  of 
private  property  at  sea  and, 
recognized  at  first  conference, 
7047i;  in  Civil  War,  521n,  711, 
722;  in  Declaration  of  Paris,  17, 
721;  in  fourth  commission,  second 
conference,  135;  in  instructions 
to  delegation  to  second  confer- 
ence, m196;  of  Venezuelan  ports 
cause  of  Dr.  Drago’s  note  of  Dec. 
29,  1902,  393;  suggested  com- 
promise on,  at  Maritime  Confer- 
ence at  London,  729;  use  of  sub- 
marine mines  in,  582 
Blockaded  port,  correspondence 
from  and  to,  m465,  615^16 
Bluntschli  mentioned,  27;  Organi- 
zation of  a European  Federation 
mentioned,  749 
Boedes  Lust,  quoted,  558 
Boer  War  referred  to,  88 
BoHvia:  delegation  to  second  con- 
ference, m263;  reservation  to  con- 
tract debt  convention,  fi533; 
reservation  to  program  second 
conference,  105-106 
Bombardment:  articles  of  Oxford 
Manual  quoted,  592n;  of  Val- 
paraiso by  Spanish  fleet,  589;  to 
enforce  contributions,  590-592 ; 
by  land  force  as  means  of  injur- 
ing enemy,  m49,  m127-129,  m215- 
216,  m387-391;  of  churches,  his- 
torical monuments,  buildings  de- 
voted to  art,  science  and  charity 
by  land  force,  m129,  ii389,  536;  of 


840 


INDEX 


undefended  towns,  villages,  etc., 
by  land  force,  m50,  m129,  n389, 
535;  warning  to  be  given  before 
bombardment  by  land  force, 
m389,  535 

Bombardment  of  undefended  towns, 
villages,  etc.,  by  naval  force: 
fi28,  m79,  m129,  nl71,  m176, 
m216,  M437-441,  m443,  65,  133, 
588,  594r-597 ; convention  respect- 
ing, U437-447,  587-598;  reserva- 
tions to  convention,  m539;  con- 
sent of  Senate  to  ratification, 
M447tt 

Borel,  Col.  Eugene,  delegate  of 
Switzerland  to  second  conference, 
ii283;  report  concerning  rights 
and  duties  of  neutral  powers 
quoted,  543;  personality,  162-163 

Boundary  dispute  between  Great 
Britain  and  Venezuela  settled 
through  good  offices  and  media- 
tion of  United  States,  246 

Bourbaki,  General,  crossing  of 
Swiss  frontier  by,  mentioned,  547 

Bourgeois,  M.  Leon,  French  dele- 
gate to  first  and  second  confer- 
ences, n67,  ff269;  declaration  in 
favor  of  contract  debt  conven- 
tion, 416;  discussion  of  compul- 
sory arbitration,  126,  353;  men- 
tioned, 112,  119,  129,  134,  416n, 
663;  opinion  as  to  article  con- 
cerning new  treaties  of  compul- 
sory arbitration,  328;  parliamen- 
tary debater,  177;  personality, 
147-148,  151-152,  158-159,  167; 
president  first  commission  second 
conference,  115,  m203;  quoted 
concerning  disarmament,  671; 
remarks  on  arbitration,  68,  69, 
70,  on  armaments,  666,  on  duties 
of  reporters,  ll7n,  in  support  of 
Itahan  resolution  of  compulsory 
arbitration,  380;  speech  at  first 
conference  on  armaments,  56- 
57,  659;  speech  concerning  dif- 
ference between  judicial  and  non- 
judicial questions,  425;  speech 
distinguishing  between  court  of 
arbitral  justice  and  permanent 
court  of  1899,  436;  speech  on 
compulsory  arbitration,  332; 
speech  on  duty  of  contracting 
powers  to  remind  powers  in  dis- 
pute that  court  of  arbitration  is 
open  to  them,  78-79;  statement 
concerning  insertion  of  compul- 
sory arbitration  project  in  final 


act,  374;  work  at  second  confer- 
fence,  116 

Brandstron,  M.,  delegate  of  Sweden 
to  first  conference,  w75 
Brazil:  amendment  to  project  con- 
cerning blockade,  723-724;  dele- 
gation to  second  conference,  m263; 
favored  prize  court  of  original 
jurisdiction,  474;  invited  to  first 
conference,  95n;  project  of,  for 
compulsory  arbitration,  338; 
project  of,  for  court  of  arbitral 
justice  described,  439;  personality 
of  delegates,  157;  proposed  sys- 
tem of  appointing  judges  of  court 
of  arbitral  justice,  458^59;  prop- 
osition concerning  contraband, 
713;  reservation  to  convention  of 
1907  for  peaceful  settlement  of 
international  disputes,  m533 
Brewer,  Justice,  opinion  in  The 
Pedro  referred  to,  566 
Brewster,  Sir  David,  mentioned,  30 
Bright,  John,  quoted,  32 
British-American  mixed  commis- 
sion of  1872  controlled  by  for- 
eigners, 222-223 
British.  See  Great  Britain 
Brun,  C.,  delegate  of  Denmark  to 
second  conference,  n267 
Brussels,  See  Conference  of 
Buchanan,  William  I.,  American 
delegate  to  second  conference, 
m259;  personality,  156-157 
Budgets.  See  Armaments,  Mili- 
tary charges,  etc. 

Buena  Ventura,  cited,  m219,  561- 
563 

Bugler  accompanying  envoy  with 
flag  of  true,  zilSl,  w393 
Bulgaria  at  first  and  second  con- 
ferences, 47n;  delegates  to  first 
conference,  m77;  delegates  to 
second  conference,  m263;  objec- 
tions and  reservations  to  inter- 
national commissions  of  inquiry, 
77-78,  307;  presented  project  for 
court  of  arbitral  justice,  437; 
supported  proposition  for  court 
of  arbitral  justice,  434r-435 
Bullets,  explosive:  amendment  of 
Captain  Crozier  concerning,  62n; 
discussion  in  first  conference, 
60-61;  report  of  delegation  to 
first  conference,  n26-27;  report 
of  Captain  Crozier,  m33-35;  dec- 
laration prohibiting  use  of  dum- 
dum, m26-27,  ul57 ; use  of,  prohib- 
ited by  Declaration  of  St.  Peters- 
burg, 21 


INDEX 


841 


Biilow,  Count  von,  letter  to,  from 
Mr.  White  referred  to,  75;  men- 
tioned, 71,  75 

Buquet,  Col.  Sebastian,  delegate  of 
Uruguay  to  second  conference, 
0285 

“Bureau  de  poste”  referred  to, 
288n 

Bureau  of  the  American  Republics, 
Mr.  Root’s  speech  on  laying  cor- 
nerstone of,  253,  679 
Bureau  of  information  for  prison- 
ers of  war,  nl23,  m125,  m215, 
m383,  m385,  534 

Bureaus  of  the  commissions,  116 
Burial  of  prisoners  of  war,  m125, 
m387 

Burning  and  devastation  of  towns, 
588-589 

Burritt,  Elihu,  mentioned,  28,  683 
Burton,  T.  E.,  mentioned,  90 
Bustamante,  Antonio  Sanchez  de, 
Cuban  delegate  to  second  con- 
ference, ii2Q5 

Butler,  Charles  Henry,  American 
delegate  tb  second  conference, 
0259;  personality  of,  156-157 

Cables:  in  neutral  territory,  m405, 
545;  in  occupied  territory,  m217, 
m401,  report  of  Captain  Crozier, 
m51 

Calling  of  first  conference,  33,  39- 
47 

Calling  of  second  conference,  88-95 
Cal  VO,  Jose  de  la  Rica  y,  Spanish 
delegate  to  second  conference, 
m267 

Campbell-Bannerman,  Sir  Henry: 
address  on  opening  Interparlia- 
mentary Union,  662w;  cited,  407; 
mentioned,  662 

Canals.  See  Interoceanic  Canals 
Candamo,  Carlos  G.,  Peruvian  dele- 
gate, 0277 

Capitulations,  m50,  fil33,  0393,  538 
Captured  ships,  religious,  medical 
and  hospital  staffs  of,  m147,  m435, 
608-609 

Captures  in  neutral  waters,  0238, 
m473,  m509,  485-A86,  623-624 
Card  visits  at  The  Hague,  180-181 
Cargoes  on  merchant  ships  at  out- 
break of  hostilities,  ff417,  567-568 
Cargoes  on  neutral  vessels,  appro- 
priation of,  553-554 
Carillo,  Enrique  Gomez,  delegate 
of  Guatemala,  m271 
Carlin,  Gaston,  delegate  of  Switzer- 
land to  second  conference,  0283; 


mentioned,  343;  personality,  162- 
163 

Carnegie,  Andrew,  President  Roose- 
velt’s letter  to,  mentioned,  430 

Carvajal,  Francisco  Henriquez  i, 
delegate  of  Dominican  Republic, 
m267 

Cases  decided  by  permanent  court 
of  arbitration,  312-318 

Cases  to  be  submitted  to  permanent 
court  of  arbitration,  317 

Cases  decided  by  United  States 
courts  submitted  to  arbitration, 
243,  497 

Cash  in  occupied  territory,  m139, 
n399 

Castiglia,  Francois,  Captain,  Italian 
delegate  to  second  conference, 
0273 

Castilho,  Augusto  de.  Captain,  del- 
egate of  Portugal  to  first  con- 
ference, m71 

Castlereagh,  Lord,  mentioned,  fin 

Castro,  Juan  P.,  delegate  of  Uru- 
guay, n285;  supported  proposi- 
tion for  court  of  arbitral  justice, 
434-435 

Casualties  in  battles  and  sieges, 
523 n 

Centennial  Exhibition  of  1876  men- 
tioned, 684 

Chacon,  Francisco,  Captain,  Spanish 
delegate  to  second  conference, 
02Q9 

Charity,  edifices  devoted  to:  bom- 
bardment of,  forbidden,  m129, 
m389,  m441,  536,  592n,  597;  in 
occupied  territory,  wl39,  m401, 
539 

Chase,  C.  J.,  quoted,  in  The  Peter- 
hoff,  706 

Chastellux,  Marquis  de,  Washing- 
ton’s letter  to,  of  April  25,  1788, 
678 

Chaucer,  mentioned,  681 

Chemistry  as  means  of  destruction, 
033 

Chesapeake,  The,  referred  to,  625 

Chicago  World’s  Fair  mentioned, 
684 

Chile:  delegation  to  second  con- 
ference, 02Q5;  initiated  with 
Peru  article  concerning  notifica- 
tion by  disputing  power  to  inter- 
national bureau  that  it  is  ready 
to  submit  to  arbitration,  288n; 
reservation  to  convention  for 
peaceful  settlement  of  interna- 
national  disputes,  0533;  reserva- 
tion to  convention  concerning 


842 


INDEX 


bombardment  by  naval  forces, 
n539 ; reservation  to  international 
prize  court  convention,  ii539; 
treaty  of  disarmament  with 
Argentine  mentioned,  666 
China:  delegation  to  first  conference, 
m65;  to  second  conference,  m265; 
extraterritoriality  in,  excluded 
from  compulsory  arbitration,  369; 
incident  at  second  conference 
concerning  military  delegate  of, 
and  the  formal  proclamation  of 
war,  179;  personality  of  delegates 
to  second  conference,  158;  reser- 
vations to  convention  of  1907  for 
adaptation  to  naval  war  of  princi- 
ples of  Geneva  Convention,  ii539 
Choate,  Joseph  H.,  American  dele- 
gate to  second  conference,  m259; 
discussion  of  compulsory  arbitra- 
tion, 353;  honorary  president, 
third  commission,  m204,  115;  in 
debate,  177 ; letter  concerning 
limitation  of  armaments,  665; 
letter  to  conference  reserving 
right  to  present  collection  of  con- 
tract debts,  400;  manner  of  de- 
livering addresses,  174,  176-177; 
mentioned,  663;  language  used  in 
addresses,  123;  personality,  156- 
157,167;  presented  project  of  com- 
pulsory arbitration,  335-336;  pre- 
sented project  of  court  of  arbitral 
justice,  430-433;  reconciled  dif- 
ferences concerning  international 
prize  court,  130-131;  remarks 
concerning  arbitration  court  of 
1899,  426;  remarks  concerning 
Austrian  resolution  of  compulsory 
arbitration,  377-379 ; remarks  con- 
cerning right  of  majority  to  in- 
clude project  in  final  act,  384;  re- 
ply to  Baron  Marschall’s  speech  on 
obligatory  arbitration,  177-178; 
reserved  right  to  propose  limita- 
tion of  force  in  collection  of  con- 
tract debts,  121;  role  at  the  con- 
ference, by  John  W.  Foster,  169n; 
speech  concerning  consent  of  Sen- 
ate to  cotnpromis,  35071 ; speech 
concerning  compulsory  arbitra- 
tion, 363-366;  speech  concerning 
immunity  of  private  property 
at  sea  referred  to,  700;  speech 
concerning  naval  officers  in  inter- 
national prize  court,  speeches 
summarized  in  French  by  Baron 
d’Estournelles  and  M.  Fromageot, 
123 ; statement  as  to  why  United 
States  could  not  vote  for  decla- 


ration concerning  compulsory 
arbitration,  381;  statement  con- 
cerning supplanting  of  permanent 
court  of  1899  by  court  of  arbi- 
tral justice,  435 

Choses  in  action  not  to  be  abolished, 
m2  15,  m389,  536 

Churches:  bombardment  of,  for- 
bidden, iil29,  m389,  m441,  536, 
59271,  597;  in  occupied  territory, 
m139,  m401,  678 
Cicero,  quoted,  191 
Circassian,  The,  cited,  m229,  498- 
499;  decision  followed  in  The 
Adula,  499 

Circular,  Russian:  of  January  11, 
1899,  m3-5;  discussed,  44-^7;  of 
April  12,  1906,  102 
Circular,  United  States:  October 
21,  1904,  M168-172,  101;  quoted, 
709;  referred  to,  91;  responses  to, 
92;  of  December  16,  1904,  92-93, 
101 

Cities  as  arbitrators,  instances  of, 
204 

Civil  administrative  service  not 
hostile  act,  m409,  551 
Civil  War,  The:  continuous  voyage 
in,  711,  722,  729;  controversy 
between  Great  Britain  and  United 
States  over  cases  arising  out  of, 
626,  631;  President  Lincoln’s 

proclamation  blockading  southern 
ports  in,  mentioned,  52271 
Civil  war  and  revolutions  not  covered 
by  convention  concerning  open- 
ing of  hostilities,  520-521 
Claims  arbitrated  under  treaty  of 
Washington,  241-243 
Claims,  international,  adjustment 
of,  and  means  employed,  388- 
392 

Clark,  G.  B.,  Dr.,  mentioned,  90 
Classification  of  judges  of  inter- 
national prize  court,  504 
Classification  of  subjects  submitted 
to  arbitration,  247 
Closing  of  the  second  conference, 
140-143 

Coal  supplies  at 'neutral  ports,  m237, 
M239-240,  m515,  m517,  641-644 
Coanda,  Constantin,  Colonel,  dele- 
gate of  Roumania  to  first  con- 
ference, ii73 

Coast  fishing  vessels,  exemption  of, 
from  capture,  m465,  135,  617-618 
Cobden,  Richard:  quoted,  671;  men- 
tioned, 31;  motion  in  House  of 
Commons  quoted,  252 


INDEX 


843 


Cockerill,  George  K.,  Major,  dele- 
gate of  Great  Britain  to  second 
conference,  ii271 

Codification  of  international  law: 
association  for,  referred  to,  248- 
249;  Bluntschli’s  codification 
mentioned,  525;  no  code  for  inter- 
national prize  court,  489-490; 
Maritime  Conference  called  to 
codify  law,  497,  511;  progress  of 
codification,  513-516 
Collection  of  contract  debts.  See 
Contract  debts 

Colombia,  delegation  to  second  con- 
ference, m265;  reservation  to  con- 
tract debt  convention,  n533 
Combatants  treated  as  prisoners  of 
war,  m377,  531 

Cambattants  naufrages.  Captain 
Mahan’s  paper  on,  and  additional 
articles  concerning,  if44-46 
Comity  de  Redaction,  Art.  5 of  the 
Reglement  concerning,  119 
Commander  of  merchant  ship  trans- 
formed into  warship  n423,  573 
Commerce  and  navigation,  treaties 
of;  in  Portuguese  project  of  com- 
pulsory arbitration,  349 
Commercial  and  industrial  relations, 
recommendation  concerning  main- 
tenance of,  m289;  report  of 
American  delegation,  n248-249 
Commercial  shipping  and  submarine 
mines,  m431,  581-583 
Commission,  expert,  suggested,  to 
be  appointed  by  powers  as  result 
of  first  conference,  4 In 
Commission  to  settle  compromis, 
m337,  293 

Commission  for  navigation  of  the 
Rhine,  mentioned,  233 
Commissioners  of  international 
commission  of  inquiry,  selection 
of,  m317,  273 

Commissions  of  arbitration,  in- 
stances where  employed,  204 
Commissions,  mixed,  essence  of, 
222;  in  which  foreigners  con- 
trolled, 222-223 

Commissions  of  the  conference, 
reports  of,  mentioned,  122-123 
Commissions  of  second  conference, 
report  of  American  delegation, 
M203-204 

Commissions,  subdivision  of  con- 
ference into,  113-114 
Committees  of  examination  of  fiist 
sub-commission  of  first  commis- 
sion of  second  conference,  119 


Committees  of  first  conference,  51- 
52;  report  American  delegation, 
nl7-18 

Common  law,  analogy  between 
growth  of,  and  law  of  nations, 
1-7 

Commimication  between  inhabi- 
tants during  armistice,  wl33, 
m395 

Communication,  means  of,  in  occu- 
pied territory,  ii216 

Compensation  for  shipping  privi- 
leges arbitrated  imder  treaty  of 
Washington,  243 

Competence  of  court  of  arbitral 
justice,  w299-307 

Compliance  of  Latin-America  with 
protocol  of  adherence  to  conven- 
tion of  1899,  100 

Composition  of  arbitral  tribunal, 
216-224 

Composition  of  court  of  arbitral 
justice,  m29  1-293,  444-445;  sug- 
gested, 823,  825 

Composition  of  international  prize 
court,  modification,  of,  m503 

Composition  of  second  conference, 
113 

Compromis:  in  arbitration  before 
permanent  court,  m97,  m335-337, 
287 ; in  contract  debt  convention, 
formulation  of,  292-293;  in  mid- 
dle ages,  207;  interpreted  by  per- 
manent court,  m105;  may  reserve 
right  to  revise  award  of  per- 
manent court,  m107,  m349,  300; 
notification  of,  to  international 
bureau,  m331,  284;  ratification 
by  Senate  of,  in  compulsory  arbi- 
tration, 335-336,  350-351;  rati- 
fication by  Senate  of,  in  general 
treaty  of  arbitration,  iilOO;  set- 
tlement of,  by  court  of  arbitral 
justice,  m301,  451-453;  settle- 
ment of,  by  permanent  court  of 
arbitration,  m337,  290-293;  set- 
tlement of,  with  consent  of  Sen- 
ate, 288-290 

Compromise  at  international  con- 
ferences, 38 

Compte  Rendu  of  the  Interparlia- 
mentary Union,  cited,  90,  91 

Compulsory  arbi+.ation:  at  the  con- 
ferences, 319-385;  at  the  first 
conference,  321-330;  in  first  com- 
mission of  second  conference, 
126-129;  at  the  second  confer- 
ence, 330;  at  the  Pan-American 
conferences,  331-332;  Austria- 


844 


INDEX 


Hungary — project  and  attitude, 
342,  resolution  considered  by 
commission,  376:  declaration,  dis- 
cussed, 379-385,  quoted,  m287, 
report  of  American  delegation, 
m242-243;  difference  between,  and 
voluntary  arbitration,  199n,  276; 
discussion  in  committee  of  exami- 
nation, 344-352;  extraterritorial 
rights  excluded  from,  369;  Ger- 
many— anticipated  support  of, 
330,  attitude  toward,  129,  339- 

341,  formal  statement  of  objec- 
tions, 341,  opposition  to,  309; 
Great  Britain — project  considered 
by  committee,  350,  protocol  for 
additional  subjects,  369,  371n; 
Greece — attitude  toward,  339, 
342;  Italy — attitude,  342,  propo- 
sition of  Count  Tornielli,  343, 
resolution,  379-380;  Mexico — pre- 
sented treaty  of,  332;  new  trea- 
ties of,  m91,  m327,  277,  279,  326- 
328;  objections  to,  333-334;  of 
monetary  conventions,  325;  of 
pecuniary  claims,  352n;  of  ques- 
tions concerning  interoceanic 
canals  and  international  rivers, 
325;  of  treaties  of  commerce  and 
navigation,  349;  Portugal — proj- 
ect before  committee,  349,  pre- 
sented to  conference,  337;  proto- 
col for  additional  subjects,  369, 
371n;  report  of  American  dele- 
gation to  first  conference,  m24; 
Roumania — attitude  toward,  342, 
opposition  at  first  conference, 
309-310,  reservations  concerning, 
M165-167,  310,  423;  Russia— 
project  at  first  conference,  321, 
323-327,  803;  Servia — proposi- 
tion presented  to  second  confer- 
ence, 336;  Sweden — project  pre- 
sented to  second  conference,  337 ; 
Switzerland  — attitude  toward, 

342,  proposition  of,  343;  United 
States — proposition  presented  to 
second  conference,  335-336,  proj- 
ect before  committee,  348-350, 
refused  to  accept  de  Martens’  con- 
ciliatory project,  376;  vote  in 
committee,  352,  in  commission, 

373,  in  conference,  383;  wUy  proj- 
ect did  not  appear  in  final  act, 

374,  383-385;  Zorn’s  article  con- 
cerning, 331 

Concha,  Carlos,  delegate  of  Chile, 
m265 

Conditional  contraband,  lists  of, 
considered  at  conference,  716 


Conditional  declarations  of  war, 
518 

Conference  of  Brussels,  effect  of,  in 
development  of  international  con- 
ference, 22-23,  731 
Conference  of  St.  Petersburg  called 
by  Alexander  II,  21 
Conferences  at  termination  of  war, 
7-18 

Conferences  in  peace  for  regulation 
of  war,  18-23 

Conferences,  special,  not  displaced 
by  Hague  conferences,  m172 
Confinement  of  prisoners  of  war, 
m119,  m214-215,  n379,  532 
Congo  Conference  of  Berhn,  effect 
in  development  of  international 
conference,  24,  732-733;  recog- 
nized good  offices  and  mediation, 
261 

Congress  of  Aix  la  Chappelle,  regu- 
lations concerning  diplomatic 
agents,  mentioned,  15n 
Congress  of  Berlin,  effect  in  develop- 
ment of  international  conference, 
18,  731 

Congress  of  Nations,  Wm.  Ladd’s, 
examined  and  quoted,  27-30; 
mentioned,  749 

Congress  of  Paris,  effect  in  develop- 
ment of  international  conference, 
17-18,  731;  recommendation  as 
to  good  offices  and  mediation, 
259-260 

Congress  of  Vienna,  effect  in  develop- 
ment of  international  conference, 
14r-17,  731;  recognized  arbitra- 
tion, 233 

Coimecticut  v.  Pennsylvania,  461- 
462,  510 

Consent  of  Senate  to  ratification  of 
conventions.  See  Ratification, 
Consent  of  Senate  to 
Constitution,  The,  capture  of  Le- 
vant by,  referred  to,  623 
Constitution  of  court  of  arbitral 
justice,  i?29 1-299 

Constitution  of  international  prize 
court,  n479-487 

Constitutional  Convention  of  1787, 
mentioned,  750 

Constitutional  governments  as  fac- 
tor that  makes  for  peace,  689 
Constitutional  question  involved  in 
transformation  of  merchant  ves- 
sels into  warships,  m223 
Constitutionality  of  submission  of 
cases  decided  by  Supreme  Court 
to  international  court  or  commis- 
sion, 479-483 


INDEX 


845 


Construction  of  vessels  with  rams, 
w4,  59-61 

Consuls,  m51 

Continental  practice  concerning 
blockade,  722 

Continuous  voyage:  in  Civil  War, 
711,  722,  729;  in  French  contra- 
band proposition,  713;  in  Ger- 
man contraband  proposition,  712; 
in  instructions  to  American  dele- 
gation, wl96 

Contraband:  analysis  of  subject, 
707;  connection  between  immun- 
ity of  private  property  and, 
recognized  at  first  conference, 
705n;  discussed,  704-717;  in 
fourth  commission  of  second  con- 
ference, 135;  in  Declaration  of 
Paris,  17 ; British  proposition, 
711;  British  proposition  favored 
by  Argentine,  Belgium,  Norway, 
Portugal,  Switzerland,  Austria 
and  Sweden,  712;  vote  upon 
British  proposition,  715;  French 
proposition,  713;  French  lists  of 
absolute  contraband  accepted, 
716;  German  proposition,  712; 
Grotius  on,  705-706;  instructions 
to  delegation  to  second  confer- 
ence, nl95-196;  lists  of  condi- 
tional contraband  considered  at 
conference,  716;  Russian  circular 
of  April  12,  1906,  concerning, 
itl76;  suggested  compromise  at 
Maritime  Conference  of  London 
on,  729;  trade  in,  628-630 

Contract  debts,  limitation  of  force 
in  collection  of:  attitude  of  Aus- 
tria-Hungary, 413,  France,  413, 
Germany,  128-129,  413,  Great 
Britain,  413,  Italy,  413,  Japan, 
413, Russia,  413,  Spain,  413,  Vene- 
zuela, 412;  convention  respecting, 
U357-361;  criticism  of  term,  416; 
difference  between  Gen.  Porter’s 
and  Dr.  Drago’s  propositions, 
420;  discussion  in  first  commis- 
sion of  second  conference,  128- 
129,  400^14;  discussion  of  con- 
vention, 386^22;  Dr.  Drago’s 
note  of  Dec.  29,  1902,  392-400; 
formulation  of  compromis  in,  292- 
293;  importance  of  convention, 
415-422;  included  in  program  of 
Pan-American  Conference,  397 ; 
instructions  to  American  delega- 
tion to  Pan-American  Conference 
concerning,  398;  instructions  to 
American  delegation  to  second 


Hague  conference  concerning, 
m188-189,  399;  objection  that 
use  of  force  permitted  if  debtor 
refuses  arbitration,  418;  reasons 
for  abstentions  of  Roumania, 
Belgium  and  Switzerland,  413; 
report  of  American  delegation, 
n213;  reservations  to  convention 
of  Argentine,  417,  m533,  Bolivia, 
m533,  Colombia,  m533,  Domini- 
can Republic,  m535,  Ecuador, 
ii535,  Greece,  m535,  Guatemala, 
m535,  Peru,  n535,  Salvador,  ii535, 
Uruguay,  m535;  reservation  of 
United  States  to  program  of 
second  conference  concerning, 
102-106  ;right|to  propose  reserved 
by  Mr.  Choate,  121;  resolution  of 
Pan- Ameri  can  Conf  erence  concern- 
ing, 399 ; resolution  of  UnitedStates 
Senate  consenting  to  ratification 
of  convention,  M361-363n;  term 
not  defined,  417;  United  States 
delegation  presented  proposition 
to  first  commission  of  second  con- 
ference, 129;  vote  in  commission, 
415,  in  conference,  416;  conven- 
tion, m357-361,  386-422;  consent 
of  Senate  to  ratification,  361n; 
reservations  to°convention,  m533- 
535 

Contractors  treated  as  prisoners  of 
war,  m123,  m383,  533 

Contributions:  bombardments  to  en- 
force, m441,  590-592,  597;  on 
inhabitants  of  occupied  territory, 
n50-51,  m137,  m399,  552,  553, 
592«,  599 

Controversy  between  Great  Britain 
and  United  States  over  cases 
arising  out  of  Civil  War,  626,  631 

Controversy  in  mixed  commission 
under  Jay’s  Treaty  as  to  power 
of  commission  to  determine  its 
jurisdiction,  300?i 

Convention  concerning  the  rights 
and  duties  of  neutral  powers  in 
naval  war,  m507-523,  620-648 
See  Rights  and  duties  of  neutral 
powers  in  naval  war 

Convention  for  the  adaptation  to 
naval  warfare  of  the  principles 
of  the  Geneva  Convention,  nl43- 
151,  M447-463,  599-614 
See  Adaptation  to  naval  warfare 
of  the  principles  of  the  Geneva 
Convention 

Convention  for  peaceful  settlement 


846 


INDEX 


of  international  disputes,  iiSl- 
110,  M309-355,  254-318 
See  Peaceful  settlement  of  inter- 
national disputes 

Convention  relative  to  the  conver- 
sion of  merchant  ships  into  war- 
ships, M423-429,  568-576 
See  Transformation  of  merchant 
ships  into  warships 
Convention,  draft,  relative  to  the 
creation  of  a court  of  arbitral 
justice,  u291-309 
See  Court  of  arbitral  justice 
Convention  relative  to  the  creation 
of  an  international  prize  court, 
M473-507,  465-511 
See  International  prize  court 
Convention  relative  to  certain  re- 
strictions with  regard  to  the  right 
of  capture  in  naval  war,  u463, 
614-620 

See  Restrictions  upon  right  of 
capture  in  naval  war 
Convention  relative  to  the  laying 
of  automatic  submarine  contact 
mines,  m'429-437,  576-587 
See  Mines 

Convention  relative  to  the  opening 
of  hostihties,  m363-367,  516-522 
See  Opening  of  hostilities 
Convention  relative  to  the  status  of 
enemy  merchant  ships  at  the 
outbreak  of  hostilities,  m415-421, 
556-568 

See  Enemy  merchant  ships  at 
outbreak  of  hostilities 
Convention,  proposed,  relative  to 
laws  and  customs  of  maritime 
war,  wl94 

Convention  respecting  the  laws  and 
customs  of  war  on  land,  iilll- 
141,  U369-401,  522-541 
See  Laws  and  customs  of  war  on 
land 

Convention  respecting  the  limita- 
tion of  the  employment  of  force 
for  the  recovery  of  contract  debts, 
t!:357-361,  386-422 
See  Contract  debts 
Convention  respecting  the  rights 
and  duties  of  neutral  powers  and 
persons  in  case  of  war  on  land, 
m401^15,  541-555 
See  Rights  and  duties  of  neutral 
powers  and  persons  in  case  of 
war  on  land 

Conventions,  nature  of,  and  dif- 
ference between,  and  declarations, 
resolutions,  recommendations  or 
voeux,  136-140 


Conversion  of  merchant  ships  into 
warships.  See  Transformation  of 
merchant  ships  into  warships 
Correspondence  between  Holland 
and  the  Pope,  84-85 
Correspondence  concerning  pro- 
gram of  second  conference,  101-106 
Correspondence,  postal,  on  neutral 
ships,  m465,  615-616 
Correspondence  relating  to  the 
second  peace  conference,  ul68 
Correspondence  with  Ambassador 
Hitchcock  concerning  first  con- 
ference, 41w,  42n 

Correspondents,  newspaper,  treated 
as  prisoners  of  war,  iil23,  m383, 
533 

Costa  Rica,  failed  to  send  delegates 
to  second  conference,  m1807i 
Costs  before  court  of  arbitral  jus- 
tice, w'305,  455 

Costs  of  international  prize  court, 
m495 

Counsel.  See  Agents 
Courrier  de  la  Conference  de  la  Paix, 
mentioned,  122,  172-173 
Court,  C.  a,  Lieutenant-Colonel, 
British  delegate  to  first  conference, 
ii69 

Court  of  arbitral  justice:  analysis  of 
project,  442-460;  discussed,  423- 
464;  discussion  in  committee  of 
examination  B,  437-442;  discus- 
sion in  first  commission  of  second 
conference,  129-130,  430,  437; 
does  not  supplant  permanent 
court  of  1899,  m291,  435-436, 
442^43;  Germany  supported 
American  project,  129;  Great 
Britain  supported  American  proj- 
ect, 129;  Haiti  presented  proj- 
ect, 437;  instructions  to  delega- 
tion to  second  conference,  m191, 
440^41;  Mexico  reserved  in  vot- 
ing, 435;  President  Roosevelt’s 
message  to  Congress  concerning, 
460;  recommendation  of  second 
conference,  m289  ; report  of  Amer- 
ican delegation,  w'244-248;  reser- 
vation of  Switzerland  to  project, 
n541 ; Russian  project  mentioned, 
430,  437,  described,  437—438 ; sug- 
gested composition  of,  823,  825; 
United  States  presented  project, 
129;  United  States  project  de- 
scribed, 441;  United  States  proj- 
ect substituted  by  project  of 
Germany,  United  States  and 
Great  Britain,  437;  Uruguay 


INDEX 


847 


presented  project,  437;  vote  upon 
project,  437 

Court  of  1899  not  permanent,  425, 
442^43 

Creation  of  public  opinion  for  the 
Hague  conference,  25-34 
Creation  of  public  opinion  in  favor 
of  arbitration,  248-249 
Cremer,  Randall,  mentioned,  684 
Creole,  The,  referred  to,  238 
Crews  of  belligerent  warships  not 
to  be  completed  in  neutral  port, 
m515,  640-641 

Crews  of  captured  enemy  merchant 
ships,  m227-228,  m467,  619-620 
Crimean  War,  rules  concerning 
enemy  merchant  ships  at  out- 
break of  hostilities  in,  559-560 
Criticisms  of  Jay’s  Treaty,  210 
Cromwell’s  treaties  of  arbitration, 
212-215 

Cross-examination  of  witnesses  be- 
fore international  commission  of 
inquiry  by  counsel  not  allowed, 
m321,  271 

Crowe,  Eyre,  British  delegate  to 
second  conference,  m271;  per- 
sonality, 159 

Crozier,  William,  Captain,  American 
delegate  to  first  conference,  m67; 
amendment  concerning  explosive 
bullets,  62n;  report  regardmg  the 
work  of  the  first  committee  of 
the  first  conference  and  its  sub- 
committee, n29-35;  report  re- 
garding the  work  of  the  second 
sub-committee  of  the  second  com- 
mittee, w46-52;  mentioned,  650, 
651;  personality,  147;  prominent 
delegate,  150 

Cruce,  Em^ric,  Le  Nouveau  Cynde 
mentioned,  26,  741 
Crystal  Palace  of  1852  mentioned,  684 
Cuba:  delegation  to  second  confer- 
ence, ii2Q5;  reservation  to  inter- 
national prize  court  convention, 
m539 

Dalbemar,  Jean  Joseph,  delegate  of 
Haiti,  m273 

Darby’s  estimate  of  number  of  arbi- 
tra  ions  in  19th  century,  224 
Date  of  second  conference,  96-99 
Date  of  third  conference,  735 
Davis,  George  B.,  Brigadier-General, 
American  delegate  to  second  con- 
ference, m259;  mentioned,  727; 
personality,  156-157;  statement 
concerning  neutral  persons  in 
belligerent  territory,  550 


Death  certificates  of  prisoners  of 
war,  m125,  ii387 

Deaths  among  sick  and  wounded  in 
hands  of  belligerents,  m457,  612 
Decision  of  court  of  arbitral  justice, 
m305,  455 

Decision  of  international  commis- 
sion of  inquiry,  m323,  272 
Decision  of  international  prize  court, 
tt479,  m493,  m495 
Decision  of  permanent  court  of  arbi- 
tration, m347,  299 
Declaration  concerning  compulsory 
arbitration,  ii287,  ii242-243,  379- 
385 

Declaration  of  American  delegation 
concerning  limitation  of  arma^ 
ments  and  budgets,  m19,  w37- 
39,  57-59 

Declaration  of  American  delegation 
concerning  entangling  alliances, 
m59 

Declaration  of  Brussels,  revision  of, 
ii8,  ii20~21 

See  Laws  and  customs  of  war  on 
land 

Declaration  of  Paris,  provisions  of, 
quoted,  17;  concerning  effective- 
ness of  blockades,  721 
Declaration  of  St.  Petersburg,  effect 
of,  in  development  of  intema- 
national  conference,  21,  732 
Declaration  prohibiting  the  laimch- 
ing  of  projectiles  and  explosives 
from  balloons:  of  1899,  nl53;  of 
1907,  W525-547;  referred  to,  651; 
consent  of  Senate  to  ratification, 
n528n 

See  Balloons 

Declaration  prohibiting  the  use  of 
dum-dum  bullets,  m26-27,  iil57 
See  Bullets 

Declaration  prohibiting  the  use  of 
projectiles  containing  asphyxiat- 
ing or  deleterious  gases,  ii26, 
iil55 
See  Gases 

Declarations,  nature  of,  and  dif- 
ference between  conventions, 
resolutions,  recommendations  or 
voeux,  136^140 

Declarations  of  war:  absolute  and 
conditional,  519;  hostilities  only 
open  with,  m363,  518-519;  noti- 
fication to  neutral  powers  of, 
m363,  520;  war  dates  from,  517 
Deerhound,  The,  mentioned,  610 
De  facto  and  public  blockades,  718 


848 


INDEX 


■ Definition  of  neutral  persons  in 
Germany’s  proposed  additions  to 
convention  concerning  laws  and 
customs  of  war  on  land,  826 
Delegates:  entertainments  to,  181- 
184;  Rolls’  characterization  of 
leading,  to  first  conference,  151- 
152;  influence  of,  to  second  con- 
ference, 163-173;  Meurer’s  esti- 
mate of  personality  of,  to  first 
conference,  152-154;  qualifica- 
tions of,  144;  rank  of,  170-171; 
receptions  to,  181-184;  rules  as 
to  taking  part  in  deliberations, 
120;  substitution  of,  120 
Delegation,  special,  of  the  court  of 
arbitral  justice,  m293,  m297,  m299 
-301,  m497,  448,  454 
Delegations  to  first  conference, 
m63-77;  secretaries  to,  151;  size 
of,  149 

Delegations  to  second  conference, 
m257-283;  influence  of,  163-173 
Delegations,  division  of,  into  am- 
bassadors and  plenipotentiaries, 
170-171 

Deliberations  of  permanent  court 
of  arbitration,  wl05 
Deliberations  of  the  second  con- 
ference; rules  as  to  taking  part 
in,  120;  secrecy  of,  m204 
Delyannis,  N.,  delegate  of  Greece  to 
first  conference,  m69 
Denial  of  justice  as  basis  of  inter- 
national claim,  389 
Denison,  Henry  Williard,  Japanese 
delegate  to  second  conference, 
m273 

Denmark:  delegation  to  first  con- 
ference, m65;  delegation  to  sec- 
ond conference,  m267;  reply  to 
United  States  circular  of  Oct.  21, 
1904,  92;  reply  to  United  States 
circular  of  Dec.  16,  1904,  m173; 
reservation  to  program  of  second 
conference,  105-106 
Denunciation  of  conventions  of 
1899,  ul09,  m115,  m151 
Denunciation  of  conventions  and 
declaration  of  1907,  m307-309; 
m355,  2V361,  ii3&7,  ii375,  m413, 
m421,  m427,  m435,  m445,  m461, 
w471,  m501,  ii523,  m525-527;  reg- 
ister of,  to  be  kept,  ii355,  m361, 
ii3Q7,  m375,  m413,  m421,  ii427, 
m437,  m445,  zf463,  m471,  ii523 
Departure  of  merchant  ships  at  out- 
break of  hostilities,  m415-417, 
564 


Depots  of  arms,  bombardment  of 
by  naval  force,  n439,  595 
Depots  of  arms  in  occupied  terri- 
tory, m139,  m399 

Descamps,  Chevalier,  Belgian  dele- 
gate to  first  conference,  m65; 
draft  concerning  new  treaties  of 
arbitration,  326;  explanation  of 
functions  of  reporter,  116-117; 
M.  Renault’s  remarks  concern- 
ing report  of,  117n;  mentioned, 
78,  225,  311;  personality,  146- 
147,  150-154;  reporter  of  third 
commission,  117;  M.  Bourgeois’ 
and  Beldiman’s  remarks  concern- 
ing report  of,  117n 
“Desirable:”  insertion  of,  in  con- 
vention for  peaceful  adjustment 
of  international  disputes,  273;  in 
article  concerning  offer  of  good 
offices  and  medi.ation  by  strang- 
ers, 305;  in  article  instituting  inter- 
national commissions  of  inquiry, 
306,  308m 

Desjardins,  Arthur,  quoted  by  M. 

Beernaert,  135;  mentioned,  134 
d’Estoumelles.  See  Estournelles 
Destruction  of  neutral  prizes;  dis- 
cussed, 725-730;  attitude  of 
Great  Britain,  Japan  and  United 
States,  729;  proposition  of  Great 
Britain,  728;  in  fourth  commis- 
sion of  second  conference,  135; 
in  Russian  circular  of  April  12, 
1906,  m176;  Russian  proposition, 
727-728;  suggested  compromise 
on,  at  London  Maritime  Confer- 
ence, 729;  proposition  of  United 
States,  728 

Destruction  of  private  property, 
m49-50 

Deutsche  Revue,  Dr.  Zorn’s  article 
in,  75-76,  331 

Devastation  and  burning  of  towns, 
588-589 

Development  of  international  con- 
gress, 1-34,  731-733 
Development  of  law  of  nations,  1-7 
Development  of  Roman  judicial 
system  from  arbitration,  190-193 
Dieppe,  burning  of,  by  Lord  Berke- 
ley, 588 

Difference  between  conventions, 
declarations,  resolutions,  recom- 
mendations or  voeux,  136-140 
Difference  between  parliamentary 
and  international  conference, 
35-37 

Difference  between  Porter’s  and 


INDEX 


849 


Drago’s  contract  debt  proposi- 
tion, 420 

Difference  between  compulsory  and 
voluntary  arbitration,  199n,  276 
Dimitrieff,  S.,  Commander,  Bul- 
garian delegate  to  second  con- 
ference, fi263 

Diplomatic  agents;  regulations  of 
Congress  of  Aix-la-Chappelle  men- 
tioned, I5n;  report  of  Captain 
Crozier,  iiSl 

Diplomatic  assembly,  difference  be- 
tween parliamentary  assembly 
and,  35-37 

Diplomatic  privileges  and  immuni- 
ties: judges  of  permanent  court 
of  arbitration  enjoy,  m93-95, 
n331,  284;  judges  and  deputy 
judges  of  court  of  arbitral  justice 
enjoy,  u293:  judges  and  deputy 
judges  of  international  prize 
court  enjoy,  m481 

Diplomatic  questions  excluded  from 
conference,  41n 

Diplomats  chosen  as  delegates,  145 
Disarmament:  by  Argentine  and 
Chile,  treaty  of,  666;  how  may  be 
accomplished,  670;  telegram  to 
Ambassador  Hitchcock  concern- 
ing, 42n 
See  Armaments 

Discussion  at  conference,  limitation 
of,  M183-184 

Discussions  before  court  of  arbitral 
justice,  w305,  455 
Discussions  before  international 
prize  court,  m491,  fi493 
Discussions  before  permanent  court 
of  arbitration,  iilOl,  iil05,  m341- 
343,  m347,  295,  297,  299 
Discussion  of  war  measures  at  peace 
conference,  522-523 
Disputes  covered  by  arbitration 
convention,  m89,  ff327,  276,  424 
Dissent  of  judges  from  award  of 
permanent  court,  m105 
Distinction  between  arbitration, 
good  offices  and  mediation,  188, 
319-321;  in  middle  ages,  208- 
209 

Distinction  between  arbitration  and 
judicial  proceedings,  188 
Distinction  between  conventions, 
declarations,  resolutions,  recom- 
mendations or  voeux,  136-140 
Distinction  between  good  offices  and 
mediation,  259-260 
Distinction  between  judge  and  arbi- 
trator, 189 

Distinction  between  plenipoten- 


tiary, technical  delegate,  expert 
attache  and  secretary,  113 
Distribution  of  judges  of  inter- 
national prize  court,  m501,  m505 
District  courts,  submission  of  case 
from  international  prize  court  to, 
502 

Diving  torpedo-boats.  See  Sub- 
marine torpedo-boats 
Division  of  delegations  into  am- 
bassadors and  plenipotentiaries, 
170-171 

Division  of  subjects  of  first  con- 
ference, 52;  of  second  conference, 
m203 

Documents  before  permanent  court 
of  arbitration:  communication 
of,  iflOl,  m341,  296;  interpreta- 
tion of,  m345,  298;  consideration 
and  production  of  new,  wl03, 
m343,  296,  297 

Dodge,  David  Low,  mentioned,  682 
Dogger  Bank  incident  settled  by 
international  commission  of  in- 
quiry, 125,  265,  267;  honor  and 
vital  interests  involved  in,  308 
d’Oliveira.  See  Oliveira 
Dominican  Republic,  delegation  to 
second  conference,  m267  ; reser- 
vation to  contract  debt  conr\mn- 
tion,  ii535;  to  convention  con- 
cerning rights  and  duties  of  neu- 
tral powers  in  naval  war,  u539 
Don  Pacifico  case,  235 
Doude  vanTroostwizk,  M.  W.,  secre- 
tary-general of  second  conference, 
124 

Draft  code  of  arbitration  proposed 
by  Russia  in  1899,  789 
Draft  convention  relative  to  crea- 
tion of  court  of  arbitral  justice, 
n291-309 

Drago,  Luis  M.,  delegate  of  Argen- 
tine Republic,  m261;  blockade  of 
Venezuelan  ports  cause  of  note 
of  Dec.  29,  1902,  393;  criticism 
of  term  “contractual  debts”  by, 
416;  difference  between  propo- 
sition of,  and  proposition  of  Gen. 
Porter  concerning  contract  debts, 
420;  discussion  of  compulsory 
arbitration  by,  353;  doctrine  of, 
and  Monroe  Doctrine  closely  re- 
lated, 395,  420-422;  manner  of 
delivering  addresses,  174;  men- 
tioned, 128;  note  of  Dec.  29,  1902, 
concerning  public  debts  dis- 
cussed, 392-400  ;personahty,  168; 
reply  of  Secretary  Hay  to  note  of, 
397;  reservation  concerning  con- 


850 


INDEX 


tract  debt  convention,  417; 
speech  at  Buenos  Aires,  Aug.  17, 
1906,  421;  speech  on  contract 
debts  at  conference,  405-411;  sup- 
ported proposition  for  court  of 
arbitral  justice,  434-435 
Drummer  accompanying  envoy  with 
flag  of  truce,  nl31,  w501 
Dum-dum  bullets.  See  Bullets 
Dunant,  Henry,  “Un  Souvenir  de 
Solferino,  ” mentioned,  19 
Duration  of  convention  concerning 
court  of  arbitral  justice,  rf307- 
309 ; concerning  international 
prize  court,  m501;  concerning  the 
laying  of  automatic  submarine 
mines,  n435,  584 

Dutch  Government.  See  Nether- 
lands 

Ecuador,  represented  at  second 
conference,  iflSOn;  delegation, 
m267  ; reservation  to  contract 
debt  convention,  to  inter- 

national prize  court  convention, 
ii539 

Editing  committee  referred  to,  82 
Effect  of  judgment  of  international 
prize  court,  n479,  ^498-502 
Effect  of  outbreak  of  war  upon 
neutrals,  516-517 

Efficacy  of  Arbitration,  J.  B. 

Moore,  referred  to,  252-253 
Election  of  president  and  vice-presi- 
dent of  international  prize  court, 
m483 

Electricity  as  means  of  destruction, 
m33 

Elements  for  the  elaboration  of  a 
convention  to  be  concluded  by 
the  powers  participating  in  the 
Hague  Conference  presented  by 
the  Russian  delegation  of  1899, 
781 

Elements  necessary  to  prove  to 
confiscate  vessel  for  violating 
blockade,  719 

Elies,  Sir  Edmond  R.,  delegate  of 
Great  Britain  to  second  confer- 
ence, m271 

Emperors  as  arbitrators,  instances 
of,  203 

Employes  of  administrative  council, 
M333-335,  281-282 
Enemy,  defenseless,  who  has  sur- 
rendered, forbidden  to  kill  or 
wound,  nl27,  m387-389,  535 
Enemy,  means  of  injuring  not  un- 
limited, m127,  m387,  535 


Enemy  citizens  not  to  be  forced  to 
take  part  against  country,  m215- 
226 

Enemy  goods,  provision  of  Declara- 
tion of  Paris  concerning,  17 

Enemy  merchant  ships  at  outbreak 
of  hostilities,  rules  of  various 
countries  concerning  treatment 
of,  559-566 

Enemy  merchant  ships  at  outbreak 
of  hostihties,  status  of:  conven- 
tion concerning,  w415-421,  556- 
568;  discussed,  557-564;  in  fourth 
commission  of  second  conference, 
• 135;  not  signed  by  American  dele- 
gation nor  submitted  to  Senate 
for  ratification,  M421n,  568;  re- 
port of  American  delegation, 
m219-221;  reservations  to,  ii5S7 

Enemy  merchant  ships,  captured: 
officers  and  crew  of,  m227-228, 
m467,  619,  620 

Enemy  property,  unnecessary  seiz- 
ure or  destruction  of,  wl27,  m387- 
389,  535 

England:  arbitration  in  early,  193; 
arbitration  treaty  of  1655  with 
France,  214;  arbitration  treaty 
with  Holland  of  1654,  212-213; 
arbitration  treaty  of  1654  with 
Portugal,  214;  mentioned,  681. 
See  Great  Britain 

English  Peace  Society  mentioned, 
682 

Enguist,  Admiral,  squadron  at 
Manila  during  Russo-Japanese 
war,  639-640 

Enlistments  in  foreign  armies  in 
United  States,  R.  S.  5282,  552n 

Entangling  alliances:  attitude  of 
American  delegation  concerning 
reminding  powers  that  court  of 
arbitration  is  open  tothem,  80-81 ; 
declaration  of  United  States  of 
1899  concerning,  2259;  instruc- 
tions to  American  delegation, 
22185-186;  report  of  American 
delegation,  222  10;  reservation  of 
United  States  to  convention  of 
1899  for  peaceful  settlement  of 
international  disputes  concerning, 
22'165;  reservation  of  United  States 
Senate  to  convention  of  1907  for 
peaceful  settlement  of  inter- 
national disputes,  22355—35721 

Entertainments  to  the  delegates, 
181-182 

Envoy  with  flag  of  truce,  22131, 
22393 


INDEX 


851 


Equality  of  states,  163,  673;  in  con- 
nection with  composition  of  court 
of  arbitral  justice,  456-457;  in 
connection  with  composition  of 
international  prize  court,  503- 
504;  in  middle  ages,  200;  Re- 
nault’s views  on,  165-166 
Equality  of  vote  not  equality  of 
influence,  37 

Escaped  prisoners  of  war,  w‘121, 
u381,  m407,  532,  548 
Essentials  of  legal  blockade,  719-720 
Esteva,  Gonzalo  A.,  Mexican  dele- 
gate, 0275;  reserved  in  voting 
for  court  of  arbitral  justice,  435 
d’Estournelles  de  Constant,  Baron, 
French  delegate  to  first  and 
second  conferences,  ii67,  m269; 
mentioned,  74,  663;  personality, 
151-154,  158-159;  summarized 
Mr.  Choate's  speeches  in  French, 
123 

Ethiopia  not  represented  at  second 
conference,  iil80n 
Evelyn  quoted  concerning  burning 
of  Dieppe  and  Havre,  588 
Evidence,  procurement  of,  for  per- 
manent court  of  arbitration, 
n345,  297 

Evidence  for  international  commis- 
sion of  inquiry,  m321,  m323,  270, 
271,  272 

Evidence  for  international  prize 
court,  ii491,  500 

Evolution  of  Peace,  by  T.  J.  Law- 
rence, quoted,  694-695 
Examination  de  novo  of  case  by  in- 
ternational prize  court,  475 
Examination  of  international 
claims  in  foreign  ofiices  ex  parte, 
391 

Examples  of  arbitration,  229-253 
Exchange  of  laws  and  regulations 
concerning  belligerent  warships 
in  neutral  ports,  m241,  m519,  648 
Exchange  of  visits  at  The  Hague, 
180-181 

Execution  of  judgment  of  inter- 
national prize  court,  m479,  502 
Exemption  from  capture  of  certain 
vessels,  m465-467,  617-618,  135 
Exercise  of  rights  of  neutral  not  an 
unfriendly  act,  m241,  m519,  647 
Expert  attache,  distinction  between, 
and  other  delegates,  113 
See  Technical  and  scientific  dele- 
gates 

Expert  commission,  proposed,  to 
be  appointed  as  result  of  first 
conference,  41n 


Experts  before  court  of  arbitral 
justice,  0303,  455 
Experts  before  international  com- 
mission of  inquiry,  m319-321,  270, 
271 

Experts  before  international  prize 
court,  n4:87 

Experts  before  tribunal  of  sum- 
mary procedure,  m351,  303 
Expenses  of  administration  of  oc- 
cupied territory,  m397 
Expenses  of  court  of  arbitral  jus- 
tice, M305-307,  443,  455 
Expenses  of  international  bureau, 
097,  0335,  282 

Expenses  of  international  commis- 
sion of  inquiry,  0325,  272 
Expenses  of  international  prize 
court,  Oi95 

Expenses  of  judges  of  court  of  arbi- 
tral justice,  w395-397,  301-303, 
446 

Expenses  of  judges  of  international 
prize  court,  n483 

Expenses  of  permanent  court  of 
arbitration,  m107,  m349,  302 
Expenses  of  tending  and  interning 
sick  and  wounded  in  neutral 
territory,  wl49,  0^55,  611 
Expenses  of  interned  belligerent 
troops  in  neutral  territory,  m407, 
548 

Exploration  expeditions  immune 
from  capture,  618n 
Explosives;  in  Russian  circular  of 
Jan.  11,  1899,  m4;  instructions 
to  delegation  to  first  conference, 
07-8;  report  of  delegation  to 
first  conference,  m19-20;  discus- 
sion in  first  conference,  59-61; 
report  of  Captain  Crozier,  m29- 
35;  report  of  Captain  Mahan, 
ft36-39 

Explosive  bullets.  See  Bullets 
Explosives,  throwing  off  from  bal- 
loons. See  Balloons 
Export  of  arms,  neutral  power  not 
bound  to  prevent,  m238,  m405, 
545 

Extraterritorial  rights  excluded 
from  compulsory  arbitration,  369 
Eyschen,  M.,  delegate  of  Luxem- 
burg to  first  and  second  confer- 
ences, m69,  0275 
Eysden,  M.,  mentioned,  64 
Eysinga,  Jonkheer  W.  J.  M.  van, 
delegate  of  the  Netherlands  to 
second  conference,  0277 


852 


INDEX 


Factors  that  make  for  peace,  672- 
697 

Failures  of  the  fourth  commission, 
second  conference,  134-136 
Families  of  delegates  in  festivities 
at  The  Hague,  183-184 
Family  honors  and  rights  respected 
in  occupied  territory,  nl35,  m397 
Federation  of  the  world,  possibility 
of,  750-751 

Fees  for  witnesses  and  experts  be- 
fore court  of  arbitral  justice, 
m303,  455 

Ferraz,  Guilherme  Ivens,  Lieut. 
Commander,  delegate  of  Portu- 
gal to  second  conference,  m279 
Festivities  at  The  Hague,  181-185 
Fictitious  blockades  discussed,  719- 
720 

Field  guns,  m30 

Field  hospitals  included  in  ambu- 
lances, 601 

Final  act:  what  it  is,  82;  majority 
vote  not  sufficient  to  include 
project  in,  374,  383-385;  of  first 
conference,  m63-79,  82-84;  report 
of  American  delegation,  m26;  of 
second  conference,  u257-291; 
what  project  of  compulsory  arbi- 
tration did  not  appear  in,  374, 
383-385 

Firearms,  new,  prohibition  of  use 
of:  in  Russian  circular  of  Jan.  2, 
1899,  ii4;  instructions  to  dele- 
gation to  first  conference,  m7-8; 
report  of  delegation  to  first  con- 
ference, ul9-20;  discussion  in 
first  conference,  59-61 
First  commission  of  first  conference, 
work  of,  54-62 

First  commission  of  second  confer- 
ence, work,  124-131 
First  four  cases  decided  by  perma- 
nent court  of  arbitration,  312- 
318 

First  peace  conference,  general  sur- 
vey of,  35-87 
Fish,  Mr.,  cited,  402 
Fisher,  Sir  John  A.,  delegate  of 
Great  Britain  to  first  conference, 
m69;  personality,  148;  prominent 
delegate,  150 

Fishing  vessels,  exemption  from 
capture,  ii227,  tf465-A67,  135,  617 
Fitting  out  vessels  in  neutral  juris- 
diction, m238,  n511,  631-632 
Flags  of  hospital  ships,  nl27,  m147, 
M387-389,  n451,  535,  605 
Flags  of  truce,  iiSO,  mT31,  ff393, 
538 


Fleury,  Cardinal,  mentioned,  28 

Florida,  The,  101  U.  S.  37,  cited, 
486,  624 

Force,  use  of,  in  collecting  claims, 
391,  392 

Foreign  ambassadors  and  ministers, 
m51 

Foreign  Relations  of  the  United 
States,  cited,  94,  95;  quoted,  39, 
41,  42 

Foreigners,  military  charges  on: 
report  of  American  delegation, 
m248-249  ; recommendation  of 
second  conference,  m289 

Forests  in  occupied  territory,  m139, 
m401,  539 

Forte,  Case  of  The,  referred  to,  239 

Fortoul,  Jose  Gil,  Venezuelan  dele- 
gate, m285;  supported  court  of 
arbitral  justice,  434-435 

Foster,  John  W.,  delegate  of  China 
to  second  conference,  m265;  ad- 
dress concerning  rank  of  dele- 
gates, 170-171;  humorous  inci- 
dent concerning  military  dele- 
gate of  China  and  the  formal 
proclamation  of  war  related  by, 
179; personality,  158;  used  English 
in  delivering  address  on  immunity 
of  private  property,  123;  on  Mr. 
Choate’s  role  at  the  conference, 
169n 

Fourth  commission  of  second  con- 
ference, work  of,  134-136 

Fourth  of  July  at  The  Hague,  184- 
187 

Fox  and  Others  (Edwards,  312) 
quoted,  470 

France;  arbitration  between,  and — 
Austria,  Great  Britain,  Prussia 
and  Russia  under  treaty  of  1815, 
233;  England,  under  treaty  of 
1655,  214;  Great  Britain,  under 
treaty  of  1815,  233,  under  treaty 
of  1842,  234;  Holland,  under 
treaty  of  1813,  233;  United 
States,  treaty  of  1803, 230,  treaty 
of  1880,  243-244,  treaty  of  1908, 
251;  attitude  toward  contract 
debts,  413;  immunity  of  private 
property,  700-701;  transforma- 
tion of  merchant  vessels,  576; 
throwing  projectiles  from  bal- 
loons, 651;  continuous  voyage 
in  contraband  proposition,  713; 
delegation  to  first  conference, 
m67;  delegation  to  second  con- 
ference, m269;  delegation  to  sec- 
ond conference  mentioned,  652; 
in  Morocco  referred  to,  88;  judge 


INDEX 


853 


of  international  prize  court  sit 
permanently,  m481;  list  of  abso- 
lute contraband  accepted,  716; 
Mascat  controversy  arbitrated 
before  permanent  court  of  arbi- 
tration, 316-317 ; proposition  con- 
cerning contraband,  713;  reply  to 
United  States  circular  of  October 
21,  1904,  92;  reply  to  United 
States  circular  of  December  16, 
1904,  m173;  personality  of  dele- 
gation to  second  conference,  158- 
159;  reservation  to  convention 
concerning  laying  of  automatic 
submarine  mines,  m537;  reserva- 
tion to  convention  concerning 
bombardment  by  naval  force, 
m539;  rule  concerning  enemy 
merchant  ships  at  outbreak  of 
Crimean  war,  558-559;  rule  con- 
cerning enemy  merchant  ships 
at  outbreak  of  war  with  Germany, 
559 ; summary  procedure  initiated 
by  French  delegation,  302;  sup- 
ported international  prize  court, 
131 

Franklin,  Benjamin,  letter  to  Rich- 
ard Price,  Feb.  6,  1780,  referred 
to,  677n 

Franklin,  Dr.,  quoted,  227,  691, 
692,  693;  quotation  from  diary 
of  John  Baynes  concerning,  691, 
692;  Sir  Samuel  Romilly’s  im- 
pression of,  691n;  observations 
of,  concerning  standing  army  in 
United  States,  692 

Frazer,  Commissioner,  mentioned, 
499 

French  revolution  mentioned,  720 

French  spoliation  claims  mentioned, 
230 

Frequency  of  arbitration  in  19th 
century,  224-229 

Fried’s  estimate  of  arbitrations  in 
19th  century,  225 

Fromageot,  M.,  French  delegate  to 
second  conference,  m269;  report 
on  conversion  of  merchant  ships, 
573;  report  on  immunity  of  pri- 
vate property,  701-704;  report 
on  postal  correspondence,  615; 
summarized  Mr.  Choate’s  speeches 
in  French,  123;  summary  of 
Lord  Reay’s  speech  on  contra- 
band, 715;  personality,  158-159 

Fry,  Sir  Edward,  British  delegate  to 
second  conference,  m269;  amend- 
ment of  report  concerning  effect 
of  arbitral  award,  345;  arbitrator 
in  Moroccan  controversy,  317; 


arbitrator  in  Pious  Fund  case, 
313;  discussion  of  compulsory 
arbitration,  353;  mentioned,  112, 
663,  669;  on  difference  between 
compulsory  and  voluntary  arbi- 
tration, 199n;  presented  project 
for  international  prize  court,  120- 
121;  proposed  that  declaration 
prohibiting  throwing  projectiles 
from  balloons  remain  in  force 
until  end  of  third  conference, 
653;  remarks  concerning  compul- 
sory arbitration,  383;  remarks  on 
Austrian  resolution  of  compulsory 
arbitration,  377;  speech  concern- 
ing limitation  of  armaments, 
663;  speech  in  support  of  com- 
pulsory arbitration,  367;  person- 
ality, 159;  supported  court  of  arbi- 
tral justice,  434-436 

Fuente,  Gustavo  de  la,  delegate  of 
Peru,  m2 79 

Fuller,  Chief  Justice,  arbitrator  in 
Mascat  controversy,  317;  opinion 
in  The  Pedro  referred  to,  565 

Funds  in  occupied  territory,  m139, 
m399 

Fusinato,  Guido,  Italian  delegate 
to  second  conference,  m273;  arbi- 
trator in  Moroccan  controversy, 
317;  member  of  sub-committee  to 
consider  effect  of  arbitral  award, 
345;  personality,  159-160;  sug- 
gestion concerning  effect  of  arbi- 
tral award,  346 

Gamazo,  Gabriel  Maura  y,  Spanish 
delegate  to  second  conference, 
m267 

Gana,  Domingo,  Chilean  delegate 
to  second  conference,  ii265 

Gases,  asphyxiating  or  deleterious, 
use  of,  m26,  iil55,  61 

General  and  local  armistices,  m133, 
m395 

General  Armstrong,  The,  referred 
to,  235-236,  623 

General  survey  of  first  peace  con- 
ference, 35-87 

General  survey  of  second  peace  con- 
ference, 88-143 

General  treaty  of  arbitration,  tfl89- 
190,  333 

Genesis  of  the  international  con- 
ference, 1-34 

Genet,  Citizen,  referred  to,  625 

Geneva  arbitration,  controlled  by 
foreigners,  222-223 

Geneva  award.  See  Alabama  claims 


854 


INDEX 


Geneva  Convention  of  1864;  effect 
in  development  of  international 
conference,  19-20,  732;  men- 

tioned, 524;  quoted,  604n,  61  In; 
referred  to,  599-602;  recommen- 
dation concerning  revision  of, 
m27,  fi79;  revised  in  1906,  64. 
See  references  under  next  head 

Genev'a  Convention,  Additional 
articles  of  1868:  effect  in  develop- 
ment of  international  conference, 
20,  22,  732;  extended  to  sick  and 
wounded  in  naval  warfare,  600; 
not  adopted,  601 
See  Adaptation  of,  to  naval  war; 
Hospital  ships;  Sick  and 
wounded. 

Geneva  Society  of  Pubhc  UtiUty, 
mentioned,  20 

Gennadius;  Record  of  International 
Arbitration,  cited,  7 

Georgia  v.  South  Carolina,  referred 
to,  463 

Germany:  arbitration  opposed  by, 
at  first  conference,  75-76,  331, 
342n;  arbitration  with  Austria, 
France  and  Russia  under  treaty 
of  1815,  233;  compulsory  arbitra- 
tion— anticipated  support  of,  by, 
330,  attitude  toward,  127-129, 
339-341,  objections  to,  309,  341; 
contraband — continuous  voyage 
in  proposition  concerning,  711; 
contract  debts — attitude  toward 
limitation  of  force  in  collecting, 
128-129,  413;  court  of  arbitral 
justice — supported  by,  129,  437; 
delegates  to  first  conference, 
m63,  personality  of,  146;  delegates 
to  second  conference,  u257,  perso- 
nality of,  155-156;  international 
prize  court,  proposition  for,  120- 
121,  130;  judges  of  international 
prize  court  sit  permanently,  w481 ; 
laws  and  customs  of  war,  pro- 
posed additional  articles,  826; 
mentioned,  681;  neutral  persons 
in  belligerent  territory,  proposi- 
tion concerning,  541-542,  549, 
550;  permanent  court  of  arbitra- 
tion, opposition  to,  71-77,  310- 
312;  preferential  treatment  of, 
in  Venezuelan  cases,  315-316, 
391;  reply  to  United  States  circu- 
lar of  Oct.  21,  1904,  92;  reply  to 
United  States  circular  of  Dec.  16, 
1904,  nl73 ; reservation  to  conven- 
tion respecting  laws  and  customs  of 
war  on  land,  m535;  reservation 
to  convention  relative  to  status 


of  enemy  merchant  ships,  n537; 
reservation  to  convention  relative 
to  laying  automatic  submarine 
mines,  m537  ; reservation  to  con- 
vention relative  to  bombard- 
ment by  naval  forces,  m539;  reser- 
vation to  convention  relative  to 
rights  and  duties  of  neutral 
powers  in  naval  war,  ii541;  ser- 
vices rendered  by  neutral  persons, 
proposed  additions  concerning, 
822;  submarine  mines,  attitude 
concerning,  580-581;  transforma- 
tion merchant  ships,  attitude 
concerning,  576 

Gieshngen,  Baron  Wladimir  Giesl 
de,  delegate  of  Austria-Hungary 
to  second  conference,  m261 
Gilinsky,  Colonel,  Russian  delegate 
to  first  conference,  m73;  men- 
tioned, 650;  prominent  delegate, 
150;  speech  concerning  limitation 
of  armaments,  656;  submitted 
project  concerning  armaments 
and  budgets,  55 
Gobat,  Albert,  mentioned,  90 
Goethe,  mentioned,  681 
Good  offices  and  mediation,  w83- 
85,  m31  1-313,  256-265;  in  pro- 
gram of  first  conference,  fi4-5; 
report  of  American  delegation 
to  first  conference,  m21;  report  of 
Messrs.  White,  Low  and  Holls, 
if 52-60;  report  of  American  dele- 
gation to  second  conference, 
m206;  distinction  between,  and 
mediation  and  arbitration,  4^8, 
259-260,  319-321 ; Russian  pr^o- 
sition  of  1899,  781;  Russo-Japa- 
nese war  terminated  by,  265;  Ser- 
vian reservation  concerning, 
m167,  305;  Turkish  reservation, 
m167;  recognized  by  Congo  Con- 
ference, 261;  recommendation  of 
Congress  of  Paris,  259-260 
Good  rmderstanding  based  upon 
knowledge  and  sympathy  a fac- 
tor that  makes  for  peace,  678 
Goodriaan,  M.  Van  Tets  van,  Dutch 
Minister  for  Foreign  Affairs; 
speech  on  opening  second  con- 
ference quoted,  107-108;  men- 
tioned, m201;  speech  on  closing 
second  conference,  142;  telegram 
to  Emperor  of  Russia  proposed 
by,  142 

Goppert,  M.,  German  delegate  to 
second  conference,  fi259 
Gore,  Christopher,  mentioned,  218 
Gram,  M.  G.,  umpire  in  case  of  per- 


INDEX 


855 


petual  leases  in  Japan  before  per- 
manent court  of  arbitration,  315 

Grant,  General,  letter  to  Universal 
Peace  Union,  December,  1879, 
quoted,  696 

Grant,  Sir  Wm.,  quoted  concern- 
ing blockade,  719 

Great  Britain;  agreement  with 
United  States  concerning  naval 
force  on  Great  Lakes,  670n;  arbi- 
tration proposals  of  1899,  796; 
arbitration  with  Austria,  France, 
Prussia  and  Russia  under  treaty 
of  1815,  233;  arbitration  with 
France  of  Mascat  controversy 
before  permanent  court  of  arbi- 
tration, 316-317;  arbitration 
with  France  of  Portendic  claims 
under  treaty  of  1842,  234;  arbi- 
tration with  France  under  treaty 
of  1815,  233;  arbitration  with 
Greece  of  Don  Pacifico  case,  235; 
arbitrations  with  United  States — 
under  Jay’streaty  (1794), 475-476; 
under  treaty  of  Ghent  (1814), 
231;  under  treaty  of  1818,  231- 
232;  under  treaty  of  Washington 
(1871),  240-243,  475-476,  477- 
479,  497;  armaments,  limitation 
of — reservation  to  program  of 
second  conference,  m182,  105-106, 
presented  project,  662;  block- 
ade amendments  concerning,  724; 
boundary  dispute  with  Vene- 
zuela settled  through  good  offices 
and  mediation  of  United  States, 
246 ; compulsory  arbitration — 
project  before  committee,  350, 
protocol  referred  to  in  project 
mentioned,  369,  quoted,  371n; 
contraband — proposition  con- 
cerning, 711,  favored  by  Argen- 
tine, Belgium,  Norway,  Portugal, 
Switzerland,  Austria  and  Sweden, 
712,  vote  upon  proposition,  715; 
contract  debts — attitude  toward, 
413;  controversy  with  United 
States  over  cases  arising  out  of 
Civil  War,  626,  631;  court  of 
arbitral  justice — supported  proj- 
ect for,  129,  434-435,  437;  dele- 
gates to  first  conference,  w67, 
personalities  of,  148;  delegates  to 
second  conference,  m269,  per- 
sonalities of,  159;  destruction  of 
neutral  prizes — attitude,  729, 
proposition  concerning,  728; 
enemy  merchant  ships  at  out- 
break of  hostilities,  rule  in  Cri- 
mean war,  559-560;  immunity 


of  private  property  at  sea,  atti- 
tude toward,  700-701;  interna- 
tional prize  court — judges  of  sit 
permanently,  m481,  favored  court 
of  appellate  jurisdiction,  475, 
project  presented,  120-121;  proj- 
ect in  first  commission  second 
conference,  130;  maritime  con- 
ference called  by,  to  codify  law 
to  be  administered  in  inter- 
national prize  court,  496;  mixed 
commission  of  1853  with  United 
States  referred  to,  236;  perma- 
nent court  of  arbitration — proj- 
ect for  permanent  arbitration 
council,  798,  for  permanent  court 
of  arbitration,  279,  796;  preferen- 
tial treatment  of,  in  Venezuelan 
cases  referred  to,  315-316,  391; 
proclamation  of  neutrality  in 
Civil  War  mentioned,  52  In; 
throwing  projectiles  from  bal- 
loons, attitude  toward,  651;  reply 
to  United  States  circular  of  Octo- 
ber 21, 1904,  92,  of  December  16, 
1904,  m173;  reservation  to  con- 
vention respecting  rights  and 
duties  of  neutral  powers  and  per- 
sons in  war  on  land,  m537;  reser- 
vation to  convention  concern- 
ing laying  automatic  submarine 
mines,  m537;  reservation  to  con- 
vention respecting  bombardment 
by  naval  forces,  w539;  reserva- 
tion to  convention  for  adapta- 
tion to  naval  war  of  principles 
of  Geneva  convention,  ii539; 
reservation  to  convention  concern- 
ing rights  and  duties  of  neutral 
powers  in  naval  war,  m541;  reser- 
vation to  program  of  second  con- 
ference, 105-106;  transformation 
of  merchant  ships,  attitude  to- 
ward, 576;  submarine  mines — 
attitude  580-581,  practice  579 
See  England 

Great  Design  of  Henry  IV,  dis- 
cussed, 741-742,  749;  mentioned, 
26 

Great  Lakes,  agreement  between 
Great  Britain  and  United  States 
concerning  naval  force  on,  670n 

Greece:  arbitral  procedure  in,  198- 
199;  arbitration  in,  195-199;  arbi- 
tration in  Greek  private  law,  189; 
arbitration  of  Don  Pacifico  case 
with  Great  Britain,  235;  attitude 
toward  compulsory  arbitration, 
339,  342;  delegation  to  first  con- 
ference, m69;  delegation  to  sec- 


856 


INDEX 


ond  conference,  ii271;  opposition 
to  international  commissions  of 
inquiry,  77-78,  307;  reservation 
concerning  international  commis- 
sions of  inquiry,  307;  reservation 
to  convention  for  peaceful  settle- 
ment of  international  disputes, 
m533;  reservation  to  contract 
debt  convention,  m535;  reserva- 
tion to  program  of  second  con- 
ference, 10^106 

Green,  John  Richard,  mentioned, 
663 

Grieg,  Joachim,  delegate  of  Nor- 
way to  second  conference,  0275 

Grier,  Justice,  in  The  Prize  Cases, 
quoted,  520-521 

Grotius,  Hugo:  on  contraband,  705- 
706;  mentioned,  708,  712;  De 
Jure  Belli  ac  Pacis,  discussed, 
740,  quoted,  12-13,  Dr.  White’s 
opinion  of,  740n;  wreath  placed 
upon  tomb  of  by  American  dele- 
gation 185-186,  remarks  of  Mr. 
A.  D.  White  in  placing  the 
wreath,  740 

Grouitch,  Sava,  General,  delegate 
of  Servia  to  second  conference, 
«281 

Growing  sense  of  uselessness  of  war 
a factor  that  makes  for  peace, 
690 

Growth  of  common  law  and  law  of 
nations,  analogy  between,  1-7 

Griindell,  Major-General  de,  dele- 
gate of  Germany  to  second  con- 
ference, ii257;  personality,  155- 
156 

Guachalla,  Fernando  E.,  delegate 
of  Bolivia,  iY263 

Guatemala,  delegation,  tY271;  reser- 
vation to  convention  concerning 
contract  debts,  m535;  reserva- 
tion to  international  prize  court 
convention,  n539 

Guerillas,  w51 

Guides,  m51 

Guillaume,  Baron,  delegate  of  Bel- 
gium to  second  conference,  tY263; 
mentioned,  4 14n;  personality,  158 

Hagerup,  Francis,  delegate  of  Nor- 
way to  second  conference,  ii275\ 
mentioned,  133;  personality,  160 

Hague,  The:  seat  of  international 
commission  of  inquiry,  0315; 
seat  of  international  prize  court, 
m485;  seat  of  second  conference, 
174 


Haiti:  delegation  to  second  con- 
ference, n273;  presented  project 
for  court  of  arbitral  justice,  437; 
reservation  to  convention  con- 
cerning international  prize  court, 
m539;  supported  proposition  for 
court  of  arbitral  justice,  434-435 
Hale,  Chandler,  secretary  to  Ameri- 
can delegation  to  second  con- 
ference, wl96 

Hale,  Nathan,  mentioned,  537 
Hall  of  Knights,  second  conference 
assembled  in,  107 
Hall’s  International  Law  quoted, 
235,  571,  590-592,  595,  618n 
Hamilton,  Alexander,  mentioned, 
402 

Hammarskjbld,  Knut  Hjalmar 
Leonard  de,  delegate  of  Sweden 
to  second  conference,  w283;  pre- 
sented project  of  compulsory  arbi- 
tration, 337 ; report  on  treaties  of 
commerce  and  navigation  in  proj- 
ect of  compulsory  arbitration, 
349;  suggestion  concerning  con- 
tract debts,  413;  umpire  in  Mo- 
roccan controversy  before  per- 
manent court  of  arbitration,  317 
Handbook  of  the  Peace  Movement, 
Fried’s  estimate  of  arbitration 
in  19th  century  in,  225 
Hansard’s  jParhamentary  Debates 
cited,  33 

Harvard  Law  Review,  quoted,  16n 
Hause,  Rear-Admiral  Antoine,  dele- 
gate of  Austria-Hungray  to  sec- 
ond conference,  u261 
Hayashi,  Baron,  Japanese  delegate 
to  first  conference,  w69 
Hedengren,  David,  Colonel,  dele- 
gate of  Sweden  to  second  con- 
ference, m283 
Helen,  The,  cited,  719n 
Hemen way’s  Life  of  Wm.  Ladd 
quoted,  29 

Hennebicq,  M.,  Persian  delegate  to 
second  conference,  m279 
Henry  IV,  Great  Design  of,  dis- 
cussed, 741-742,  749;  mentioned, 
26 

Hessaptchieff,  Christo,  Major,  dele- 
gate of  Bulgaria  to  &st  con- 
ference, ii77 

Heuvel,  J.  van  den,  Belgian  dele- 
gate to  second  conference,  rt263 
Hill,  Dr.  and  Mrs.,  reception  to  dele- 
gates on  July  4,  1899,  184 
Hill,  Dr.,  to  Secretary  of  State, 
April  18,  1907,  concerning  ad- 
hesion of  non-signatory  states,  766 


INDEX 


857 


Hill,  David  Jayne,  delegate  of 
United  States  to  second  con- 
ference, m259;  personality,  156- 
157 

Hitchcock,  Ambassador:  correspon- 
dence with,  concerning  first  confer- 
ence, 41n,  42tc 

Hjulhammar,  C.  A.  M.  de,  Captain, 
delegate  of  Sweden  to  first  con- 
ference, n75 

Hohenlohe,  Prince;  letter  to,  from 
Dr.  White  concerning  permanent 
court  of  arbitration,  referred  to, 
75;  mentioned,  71 

Holguin,  Jorge,  General,  Colombian 
delegate,  m265 

Holland:  arbitration  treaty  with 
England  of  1654,  212-213;  arbi- 
tration treaty  with  France  of 
1813,  233;  attitude  toward  trans- 
formation of  merchant  vessels, 
576;  correspondence  with  the 
Pope,  84-85;  personalities  of 
delegates  to  first  conference,  148. 
See  Netherlands,  The 

Holland,  Prof.,  mentioned,  728 

Hollander  case,  Secretary  Olney’s 
instructions  in,  mentioned,  686n 

Hollner,  Johannes,  delegate  of 
Sweden  to  second  conference, 
m283 

Holls,  Frederick  W.,  delegate  of 
United  States  to  first  conference 
and  secretary  of  delegation,  m6, 
m67;  characterization  of  leading 
delegates  of  first  conference,  151- 
152;  connection  with  Germany’s 
osition  toward  arbitration.  Dr. 
orn’s  article  concerning,  75-76, 
331;  mentioned,  73,  75,  81,  342n; 
objection  to  arbitration  of  mone- 
tary conventions,  questions  con- 
cerning international  rivers  and 
interoceanic  canals,  325;  opinion 
of  article  concerning  new  treaties 
of  arbitration,  328;  Peace  Con- 
ference cited,  39-40  ,41,  43,  46, 
quoted,  55,  71,  79,  66,  263-264; 
personality,  147,  152-154;  promi- 
nent delegate,  150 ; report  on  con- 
vention for  peaceful  adjustment 
of  international  differences,  ii52- 
60;  special  mediation,  m21,  m85, 
262,  264n 

Holy  Alliance,  mentioned,  257 

Holy  Roman  Empire,  mentioned, 
673 

Honduras  at  second  conference, 
iilSOn 


Honor  and  vital  interests;  cases 
involving,  not  submitted  to  in- 
ternational commissions  of  in- 
quiry, m87,  m315,  266,  306;  in- 
volved in  Alabama  claims  arbi- 
tration, 319,  329;  involved  in 
Dogger  Bank  incident,  308 
Hospital  ships:  belligerent  rights 
over,  wl45,  m449,  n455,  605, 
609-610 ; flags  and  painting,  nl47, 
m451,  605-606;  instructions  to 
American  delegation  to  first  con- 
ference, m8;  not  protected  if  em- 
ployed to  injure  enemy,  m453, 
609,  607n;  of  belligerents,  m145; 
of  relief  societies,  m145,  m449, 
602-604;  paper  read  by  Captain 
Mahan,  ii44-45 ; report  of  Ameri- 
can delegation  to  first  conference, 
m20-21;  report  of  Captain  Ma- 
han, m39-44;  stay  in  neutral 
port,  m447,  602-603 ; to  be  placed 
under  control  of  belligerent, 
m449,  603-604;  to  give  relief  irre- 
spective of  nationality,  not  to  be 
used  for  military  purposes,  not 
to  hamper  movements  of  com- 
batants and  act  at  own  peril, 
m449,  604 

Hospital  staffs  of  captured  ships, 
m147,  m435,  608-609,  609n 
Hospitals,  to  be  indicated  by  signs 
during  bombardment,  m129,  m389, 
m441,  536,  692ra,  597 
Hospitals  and  ambulances,  599,  601 
Hospitality  at  The  Hague,  181-183 
Hostile  acts,  if405,  m409,  tt509, 
546,  551,  622 

Hostilities,  m49,  fil27— 135,  m387- 
395 

See  Opening  of  hostilities 
Ho-Yen-Cheng,  Chinese  delegate  to 
first  conference,  n65 
Hoo-Wei-Teh,  Chinese  delegate  to 
first  conference,  m65 
House  in  the  Woods,  first  conference 
assembled  in,  48 

Howard,  Sir  Henry,  delegate  of 
Great  Britain  to  first  and  second 
conferences,  u67,  ii271;  person- 
ality, 159 

Huber,  Max,  Professor,  delegate  of 
Switzerland  to  second  conference, 
m283;  personality,  162-163 
Hudicourt,  Pierre,  delegate  of  Haiti 
to  second  conference,  u273 
Hugo,  Victor,  mentioned,  30 
Human  Harvest,  David  Starr  Jor- 
dan’s, mentioned,  691-693 


858 


INDEX 


Humorous  incidents  at  the  confer- 
ence, 178-179 

Humphreys,  David,  Washington’s 
letter  to,  of  July  25,  1785,  676 
Hurst,  Cecil,  delegate  of  Great 
Britain  to  second  conference, 
tf271;  personality,  159 

Ideal  tribunal  of  arbitration,  223, 
280 

Immunity  of  private  property  at 
sea:  in  United  States  circular  of 
October  21,  1904,  ul71;  instruc- 
tions to  American  delegation  to 
first  conference,  n9;  discussion  in 
first  conference,  65,  699-700; 
report  of  American  delegation  to 
first  conference,  «'24-27;  recom- 
mendation of  first  conference, 
m79;  instructions  to  American 
delegation  to  second  conference, 
m192-194,  m196,  700;  discussion 
at  second  conference,  135,  700- 
701;  attitude  of  Great  Britain, 
Japan  and  France,  700-701;  con- 
cessions to,  in  convention  con- 
cerning restrictions  on  right  of 
capture  in  naval  war,  614-615; 
connection  between,  and  con- 
traband and  blockade  recognized 
at  first  conference,  705n;  declara- 
tion of  American  delegation  to 
second  conference,  if 222-223;  dis- 
cussed, 699-704 

Impartiality  of  arbitral  tribunal,  284 
Impartiality  of  commission  and 
award,  218,  221 
Impartiality  of  umpire,  219 
Importance  of  constitutional  or 
representative  governments  as 
factors  that  make  for  peace,  689 
Importance  of  convention  on  con- 
tract debts,  415-422 
Indemnity  for  violation  of  conven- 
tion concerning  laws  and  cus- 
toms of  war  on  land,  ii217,  ii371- 
528 

Independence  Day  at  The  Hague, 
184-187 

Independence  and  interdependence 
of  nations  as  factors  that  make 
for  peace,  672 

Indiana,  controversy  between  New 
Jersey  and  Virginia  over,  462 
Individuals,  acts  of,  in  occupied 
territory,  ii399 

Individuals  belonging  to  hostile 
army,  not  to  be  killed  or  wounded 
treacherously,  iil27,  ii387-389, 
535 


Individuals  before  international 
prize  court,  ii475,  ii487,  ii489, 
11491,  ii495,  487 

Industrial  relations,  recommenda- 
tion concerning  maintenance  of, 
11248-249,  ii289 

Influence  of  American  delegation 
on  German  opposition  to  perma- 
nent court  of  arbitration,  75 
Influence  of  various  countries,  dele- 
gates and  delegations  at  second 
conference,  163-173 
Information  for  permanent  court 
of  arbitration,  ii345,  297 
Information  for  international  com- 
mission of  inquiry,  ii319,  270 
Inhabitants  caring  for  sick  and 
wounded,  599 

Inhabitants  of  occupied  territory, 
ii47-48,  iil35,  iil37,  ii377,  ii399, 
530-531,  59271 

Initiative  in  calling  second  con- 
ference, 93-95 

Institute  of  International  Law, 
mentioned,  248-249,  526,  592- 
594,  684 

Instructions  to  American  delega- 
tion to  first  conference,  ii6-16 
Instructions  to  American  delega- 
tion to  second  conference,  ul81- 
197,  709-710 

Instructions  to  be  issued  to  armies 
similar  to  regulations  annexed  to 
convention  concerning  laws  and 
customs  of  war,  iill3,  ii371,  528 
Interdependence  and  independence 
of  nations  as  factors  that  make 
for  peace,  672 

Interest  of  neutrals  in  war,  258 
International  arbitration:  conven- 
tion of  1899,  ii89-107;  conven- 
tion of  1907,  ii325-351,  277; 
American  proposal  of  1899,  799; 
history  of,  in  United  States,  ii9- 
14;  Russian  proposal  of  1899, 
799 

International  Association  for  the 
Reform  and  Codification  of  the 
Law  of  Nations,  mentioned,  30 
International  bureau:  duties  toward 
international  commission  of  in- 
quiry, ii317 ; duties  toward  inter- 
national prize  court,  ii485,  ii487, 
ii489;  duties  toward  permanent 
court  of  arbitration,  ii91,  ii329, 
ii331,  284,  281;  notification  to, 
that  disputing  power  is  ready  to 
submit  to  arbitration,  ii333,  285, 
28871 


INDEX 


859 


International  claims,  adjustment  of, 
and  means  employed,  388-392 
International  commerce,  factor  that 
makes  for  peace,  675 
International  commissions  of  in- 
quiry, m87-89,  m315-325,  265- 
273;  Balkan  States,  opposition 
of,  to,  77-78,  307,  reservations  to, 
307;  report  of  American  delega- 
tion to  first  conference,  m21;  re- 
port of  American  delegation  to 
second  conference,  m206-210; 
Russia — circular  of  April  12, 
1906,  m176;  draft  of  article  con- 
cerning functions  of,  306;  at- 
tempt to  make  recourse  to,  oblig- 
atory and  to  have  commission 
find  responsibility,  307;  proposi- 
tion of  1899,  788;  reservation  of 
Turkey,  wl67;  reservations  of 
Bulgaria,  Roumania  and  Servia, 
307 

International  conference:  develop- 
ment of,  9-25,  732;  difference 
between  parliamentary  confer- 
ence and,  35-37;  genesis  of,  1-34; 
memorial  presented  to  Congress 
by  Pennsylvania  concerning,  89- 
90;  nature  and  purpose  of,  35-39 
International  Conference  of  Ameri- 
can States:  Mr.  Blaine  to  Mr. 
Osborn  concerning  first,  753; 
compulsory  arbitration  at,  331- 
332;  contract  debts — included 
in  program  of,  397,  instruc- 
tions to  American  delegation  to, 
398,  resolution  concerning,  399; 
mentioned,  96;  project  for  ad- 
mission of  American  states  to 
second  Hague  conference,  761 
International  congress,  plans  for 
establishment  of,  739-750 
International  congresses,  discussed, 
248-249;  as  factors  that  make 
for  peace,  682;  list  of,  759 
International  court  of  arbitration. 
See  Permanent  court  of  arbitra- 
tion 

International  law:  applied  in  inter- 
national prize  court,  n477;  an- 
alogy between  growth  of,  and 
growth  of  common  law,  1-7; 
development  of,  1-7,  731-732; 
effect  of  international  congresses 
on,  9-25,  731-732 
International  Law  Association,  men- 
tioned, 686 

International  prize  court:  conven- 
tion for  establishment  of,  m473- 
507;  discussed,  130-131,  465-511; 


report  of  American  delegation, 
M228-236 ; France  supported 
court,  131;  German  proposition, 
130;  Great  Britain  favored  court 
of  appellate  jurisdiction,  475;  proj- 
ect of  Great  Britain  presented, 
120-121;  proposition  of  Great 
Britain,  130;  interest  of  neutrals 
fundamental  principle  of,  466; 
jurisdiction,  original  or  appellate, 
474;  M.  Larreta’s  speech,  174- 
176;  law  to  be  administered, 
M233-236,  n477,  488-497;  mes- 
sage of  President  Roosevelt  on, 
508;  parties  before,  m475,  484- 
488;  proposals  for,  472-473;  pro- 
tocol concerning  submission  of 
cases  de  novo,  483-484;  submis- 
sion of  case  to,  from  United  States 
district  court,  502;  submission  of 
judgments  of  Supreme  Court  to, 
475^77,  483;  reasons  for  adop- 
tion of,  fi473,  473;  United  States 
adjourned  consideration  of  con- 
vention until  result  of  Maritime 
Conference  at  London,  f2i503: 
United  States  favored  court  of 
appellate  jurisdiction,  475-476; 
United  States  supported  court, 
131;  reservations  to  convention, 
m539 

International  redress,  mode  of  ob- 
taining, 259 

International  rivers,  compulsory 
arbitration  of  questions  concern- 
ing, 325 

International  Tuberculosis  Confer- 
ence, mentioned,  684 

International  Unions  and  their  Ad- 
ministration, Reinsch’s,  men- 
tioned, 687 

Interned  and  wounded  belligerents 
in  neutral  territory,  n218,  m407- 
409,  546-547 

Internment  and  confinement  of 
prisoners  of  war,  ill  19,  m214- 
215,  m379,  532 

Internment  of  belligerent  warships 
in  neutral  ports,  m241,  m517,  646- 
647 

Internment  of  belligerents  and  care 
of  sick  and  wounded  in  neutral 
states,  m51,  m141,  m407,  547,  548, 
m149,  m455,  611 

Interoceanic  canals,  compulsory  ar- 
bitration of  questions  concerning, 
325 

Interparliamentary  Union,  men- 
tioned, 30,  90-91,  248-249,  311, 
337,  M168-170 

Interpretation  of  compromis,  acts. 


860 


INDEX 


documents  and  international  law 
by  permanent  court  of  arbitra- 
tion, m105,  if345,  298 
Interpretation  of  treaties  of  arbi- 
tration, recommendation  of  sec- 
ond conference  to  submit  to  arbi- 
tration, m327,  275-276 
Interpreter  accompanying  envoy 
with  flag  of  truce,  m131,  m393 
Invention,  restraint  on,  u7-8,  n20 
Investigation  by  international  com- 
mission of  inquiry,  means  and 
facilities  for,  u87,  266-267 
Inviolability  of  private  property  at 
sea.  See  Immunity  of  private 
property  at  sea 

Invitation  of  Netherlands  to  first 
conference,  47 

Invitation  to  Latin-America,  95-100 
Invitation  to  second  conference 
received  and  accepted  by  United 
States,  106 

Italy:  attitude  toward  compulsory 
arbitration,  342,  and  proposition 
for,  343;  attitude  toward  con- 
tract debts,  413;  attitude  toward 
submarine  mines,  580-581;  atti- 
tude toward  throwing  projectiles 
from  balloons,  652;  judges  of 
prize  court  sit  permanently,  n481; 
preferential  treatment  of,  in 
Venezuelan  cases,  315-316,  391; 
proposition  concerning  blockade, 
723;  reply  to  United  States  cir- 
cular of  October  21,  1904,  92,  to 
circular  of  December  16,  1904, 
«173;  resolution  of  compulsory 
arbitration,  380-381;  delegates 
to  first  conference,  m69,  person- 
alities of,  m69  ; delegates  to  second 
conference,  m273,  personalities 
of,  159-160 

Jamestown  Exposition  mentioned, 
684 

Japan:  attitude  toward  contract 
debts,  413;  attitude  toward  de- 
struction of  neutral  prizes,  729; 
attitude  toward  immunity  of  pri- 
vate property  on  high  seas,  700- 
701;  attitude  toward  transfor- 
mation of  merchant  ships,  576; 
delegation  to  first  conference, 
u69;  delegates  to  second  con- 
ference, n273,  personaUties  of, 
160;  judges  of  prize  court  sit  per- 
manently, ii481;  perpetual  leases 
in,  arbitrated  by  permanent  court 
of  arbitration,  314-315;  reply  to 
United  States  circular  of  Oct.  21, 


1904,  92,  to  circular  of  Dec.  16’ 
1904,  m173;  reservation  to  con- 
vention for  peaceful  settlement 
of  international  disputes,  n533; 
reservation  to  convention  respect- 
ing laws  and  customs  of  war  on 
land,  u537;  reservation  to  con- 
vention respecting  bombardment 
by  naval  forces,  m539;  reserva- 
tion to  convention  concerning 
rights  and  duties  of  neutral  pow- 
ers in  naval  war,  if 541;  reser- 
vation to  program  of  second  con- 
ference, 105-106;  rule  concerning 
enemy  merchant  ships  at  out- 
break of  war  with  Russia,  563, 
566 

Jay,  William,  “War  and  Peace,” 
mentioned,  211;  quoted,  250 

Jay’s  Treaty  of  1794;  arbitration 
from  middle  ages  to,  200-210; 
arbitration  under,  475;  compo- 
sition of  arbitral  tribimal  under, 
216-218;  controversy  in  Mixed 
Commission  under,  concerning 
power  of  commission  to  deter- 
mine its  jurisdiction,  300n;  criti- 
cisms of,  210;  instances  of  arbi- 
tration from,  210-216;  mentioned, 
682;  mixed  commission  provided 
by,  211-212 

Jefferson,  Thomas,  Washington’s 
letter  to,  of  Aug.  31,  1788,  680 

Jenkinson  (Lord  Liverpool),  quoted, 
215 

Johanna  Emilie,  The,  quoted,  558- 
559 

Joinville,  Prince  de,  recommenda- 
tion concerning  burning  towns, 
589;  Duke  of  Wellington’s  reply 
to,  589 

Jordan,  David  Starr,  “Human 
Harvest”  mentioned,  691,  693 

Journal  de  St.  Petersburg,  quoted, 
43 

Judge,  distinction  between  arbi- 
trator and,  189 

Judges  for  delegation  of  court  of 
arbitral  justice,  ii301-303,  454 

Judges  for  court  of  arbitral  justice, 
n291-293,  ii295,  ii297,  ii299, 
ii305,  ii395-397,  444-447,  451, 
455-459 

Judges  of  international  prize  court, 
u299,  ii479,  ii481,  ii483,  iiSOl, 
n493,  ii505-507,  451,  503-508 

Judges  of  permanent  court  of  arbi- 
tration, ii93-95,  iil03,  ii331, 
ii341,  ii343,  283,  284,  294-295, 
298,  299 


INDEX 


861 


Judgment,  distinction  between 
award  and,  189,  498 
Judgment  of  court  of  arbitral  jus- 
tice, m305,  453 

Judgment  of  international  court  of 
prize,  m479,  m495,  498-502 
Judgment  of  national  prize  court 
and  international  prize  court, 
m475,  m477,  m489,  484-487,  500, 
476 

Judgments,  national,  relation  to 
arbitral  decision,  344-347 
Judicial  arbitration  court.  »See  Court 
of  arbitral  justice 
Judicial  committee,  proposition  at 
second  conference  for,  428 
Judicial  committee  of  court  of  arbi- 
tral justice,  m293,  448 
Judicial  power  of  United  States, 
extent  of,  479^84 
Judicial  proceedings,  distinction  be- 
tween arbitration  and,  188 
Judicial  settlement  of  international 
disputes,  a factor  that  makes  for 
peace,  694 

Jurisdiction  of  court  of  arbitral 
justice,  m299,  450 
Jurisdiction  of  delegation  of  court 
of  arbitral  justice,  m299-301,  454 
Jurisdiction  of  international  prize 
court,  M233-236,  m473,  474 
Jurisdiction  of  permanent  court  of 
arbitration,  ti91,  n95,  iiZ29,  ti333, 
424 

Jurists:  as  arbitrators,  instances  of, 
204;  chosen  as  delegates,  145; 
appointed  judges  of  court  of  arbi- 
tral justice,  m29 1-293,  444-445; 
appointed  judges  of  international 
prize  court,  ii479 
See  Technical  and  scientific  dele- 
gates 

Kamarowski,  mentioned,  311 
Kant’s  Confederation  of  States,  dis- 
cussed, 689,  745-748,  749;  men- 
tioned, 26,  681 

Karandjouloff,  Ivan,  delegate  of 
Bulgaria  to  second  conference, 
m263;  language  used,  123;  sup- 
ported court  of  arbitral  justice, 
434-435 

Karnebeek,  Jonkheer  van,  delegate 
of  Netherlands  to  first  and  second 
conferences,  w71,  m277;  honorary 
vice-president  of  first  conference, 
49;  personality,  148,  151-154, 
160-161;  translated  M.  Kriege’s 
speeches,  123 


Kearsarge  and  Alabama,  battle  be- 
tween, mentioned,  610 
Khuepach  zu  Reid,  Victor  de,  dele- 
gate of  Austria-Hungary  to  first 
conference,  ii65;  prominent  dele- 
gate, 150 

Killed  in  battles,  number  of,  523w 
Killing  of  individuals  belonging 
to  army,  treacherously,  prohib- 
ited, nl27,  ii387-389,  535 
King  of  Portugal,  speech  of,  to 
Cortese,  quoted,  7 
Kings  as  arbitrators,  instances  of, 
203 

Kleen,  M.,  quoted,  236 
Klint,  Gustaf  de.  Commander,  dele- 
gate of  Sweden  to  second  con- 
ference, m283 
Kluber,  quoted,  210 
Knight  Commander,  The,  sinking 
in  Russo-Japanese  War,  men- 
tioned, 725 
Kongo.  See  Congo 
Konow,  W.,  delegate  of  Norway  to 
first  conference,  w75 
Korea,  absorption  by  Japan  referred 
to,  88,  filSOn 

Kriege,  M.,  German  delegate  to 
second  conference,  m257;  arbi- 
trator in  Moroccan  controversy 
before  permanent  court  of  arbi- 
tion,  317;  language  used  at  con- 
ference, 123;  mentioned,  128,  727, 
728;  personality,  155-156 
Kiinzli,  Arnold,  Colonel,  delegate 
of  Switzerland  to  first  conference, 
iilo 

Labor  of  prisoners  of  war,  m119, 
m215,  m379,  531 

Lacaze,  Captain,  French  delegate 
to  second  conference,  m269 
Ladd,  William,  “Congress  of  Na- 
tions” examined  and  quoted,  27- 
30,  mentioned,  749;  Hemenway’s 
Life  of,  quoted,  29;  mentioned, 
682 

Lafayette,  Washington’s  letter  to, 
of  1786  quoted,  676,  of  Jan.  10, 
1788,  quoted,  677 
LaFontaine’s  estimate  of  arbitra- 
tions in  19th  century,  225-226; 
table  showing  participation  of 
each  State  in  arbitration,  226n 
Lammasch,  Henri,  delegate  of  Aus- 
tria-Hungary to  first  and  second 
conferences,  m63,  n261;  arbitra- 
tor in  Venezuelan  cases  before 
permanent  court  of  arbitration, 
315-316;  language  used  at  con- 


8G2 


INDEX 


ference,  123,  mentioned,  503; 
personality,  146,  151-154,  157- 

158;  prominent  delegate,  150; 
proposal  concerning  functions  of 
international  commission  of  in- 
quiry, 306;  proposition  concern- 
ing effect  of  arbitral  award,  344; 
reply  to  Admiral  Sperry’s  objec- 
tions to  article  concerning  ob- 
servance of  laws  and  customs  of 
war  by  merchant  ship  converted 
into  warship,  573-574;  umpire  in 
Mascat  controversy  before  per- 
manent court  of  arbitration,  317 
Land  warfare,  subjects  concerning, 
dealt  with  by  second  commission 
of  second  conference,  131-133 
See  Laws  and  customs  of  war  on 
land 

Lange,  Christian  Louis,  delegate  of 
Norway  to  second  conference, 
m277;  personality,  160 
Language:  of  the  conferences,  53, 
123-124;  of  the  court  of  arbitral 
justice,  m303,  455;  of  international 
commission  of  inquiry,  iiSlo; 
of  international  prize  court,  m485; 
of  permanent  court  of  arbitration, 
mIOI,  n339 

Larreta,  Carlos  Rodriguez,  delegate 
of  Argentine  Republic,  w261; 
speech  on  international  prize 
court,  174-176;  supported  court 
of  arbitral  justice,  434-435;  per- 
sonality, 157 

Latin-America:  admission  of,  to 
second  conference,  correspon- 
dence concerning,  761 ; comphance 
with  protocol  of  adherence,  100; 
invitation  to,  95-100 
See  Adherence  of  non-signatory 
states 

Law  of  nations.  See  International 
law 

Law  to  be  administered  in  inter- 
national prize  court,  ii\ll , 488- 
497;  criticisms  of  John  Westlake 
of,  494-496;  Maritime  Conference 
called  by  Great  Britain  to  codify, 
496,  511;  Renault’s  report  on, 
fi233-236,  491-493 
Lawrence,  T.  J.,  “Evolution  of 
Peace,”  quoted,  694-695 
Laws  concerning  arbitrations  to  be 
communicated  to  international 
bureau,  m91,  m329,  281 
Laws  concerning  belligerent  war- 
ships in  neutral  ports,  exchange 
of,  m241,  m519,  648 


Laws  and  customs  of  maritime  war: 
in  Russian  circular  of  April  12, 
1906,  ril76;  instructions  to  Amer- 
ican delegation  to  first  conference, 
m194;  neutral  mail  ships  not 
exempt  from,  w465,  616-617; 
recommendation  of  fourth  com- 
mission of  second  conference,  136 ; 
report  of  American  delegation  to 
second  conference,  m249;  mer- 
chant ships  converted  into  war- 
ships must  observe,  ti425,  573 

Laws  and  customs  of  war  on  land: 
convention  of  1899,  fflll-141; 
convention  of  1907,  m369-401; 
discussed,  522-541;  additional 
articles  to,  concerning  neutral 
persons  in  belligerent  territory, 
551-554;  cases  not  included  in 
convention  governed  by  inter- 
national law,  m369-371;  conven- 
tion compared  with  Dr.  Lieber’s 
instructions,  m47;  German  addi- 
tional articles  to,  550n  826,  con- 
vention only  applicable  to  con- 
tracting powers,  m371;  in  Rus- 
sian circular  of  April  12,  1906, 
iil76;  instructions  to  American 
delegation  to  first  conference  , iiS; 
instructions  to  American  delega- 
tion to  second  conference,  nl94; 
in  second  commission  of  first  con- 
ference, 64;  in  second  commis- 
sion of  second  conference,  132; 
convention  of  1907  replaces  con- 
vention of  1899,  m371;  report  of 
American  delegation  to  first  con- 
ference, m20-21,  ii2Q;  report  of 
American  delegation  to  second 
conference,  m214— 217;  report  of 
Captain  Crozier,  n46-52;  reser- 
vations to  convention  of  1907, 
m535,  u5?)7  ; consent  of  Senate 
to  ratification  of,  M401n 

Lawyers,  arbitrators  should  be, 
222 

Leases,  perpetual,  in  Japan,  con- 
troversy concerning,  decided  by 
permanent  court  of  arbitration, 
314-315 

Lee,  Robert  E.,  instructions  to 
invading  army,  mentioned,  537n 

Legal  questions,  arbitration  of, 
m89,  M165-167,  m327,  275-276, 
310,  423 

Leger,  J.  N.,  delegate  of  Haiti, 
m273;  supported  court  of  arbitral 
justice,  434-435 

Lena,  The,  at  San  Francisco,  in 
Russo-Japanese  War,  639-640 


INDEX 


863 


Levant,  The,  capture  of,  by  the 
Constitution,  referred  to,  624 
Lieber,  Dr.  Francis:  instructions 
for  government  of  armies  in  the 
field  referred  to,  zf47,  525-526; 
mentioned,  244;  sketch  of  career, 
525 

Limitation  of  arbitration,  224,  247, 
248 

Limitation  of  armaments.  See  Arma- 
ments 

Limitation  of  discussion  at  con- 
ference, izl83-184 
Limitation  of  force  in  recovery  of 
contract  debts.  See  Contract 
debts 

Limitation  of  military  charges,  m27 
Lincoln,  President,  mentioned,  525 
Lindo  V.  Rodney,  quoted,  557-558 
Lissa,  battle  of,  mentioned,  20,  600, 
732 

List  of  states  invited  to  second  con- 
ference,- ffl79-180 
List  of  warships  to  include  merchant 
ships  transformed,  m425,  574 
Lists  of  conditional  contraband 
considered  at  conference,  716 
Liverpool,  Lord,  quoted,  215 
Loans  not  hostile  act,  n409,  551 
Local  armistices,  m133,  m395 
Loeff,  J.  A.,  delegate  of  the  Nether- 
lands to  second  conference,  ii277 ; 
personality,  160-161 
London  Maritime  Conference,  729 
Lorenzo  Marquez,  use  of  port,  by 
Boers,  mentioned,  713 
Lorimer,  James:-  Institutes  of  the 
Law  of  Nations  cited,  31,  33; 
organization  of  an  international 
government,  mentioned,  749; 
mentioned,  27 

Loughborough,  Chancellor,  men- 
tioned, 300n 

Louisiana,  cession  of,  mentioned,  230 
Louisiana  Purchase  Exposition  of 
1904,  mentioned,  684 
Lou-Tseng-Tsiang,  delegate  of  China 
to  first  and  second  conferences, 
m65,  m265;  personality,  158 
Low,  Seth,  delegate  of  United 
States  to  first  conference,  m67; 
personality,  147;  report  on  good 
offices,  mediation  and  arbitra- 
tion, m52-60 

Lunch  at  first  and  second  confer- 
ences, 180 

Lushington,  Dr.,  quoted  concern- 
ing blockade,  720,  and  trade  with 
blockaded  port,  719n;  quoted  in 
Johanna  Emilie,  558-559 


Luther,  Martin,  mentioned,  681 
Luxemburg:  delegation  to  first  con- 
ference, u69,  to  second  confer- 
ence, m275;  invited  to  first  con- 
ference, 47 ; reply  to  United  States 
circular  of  Oct.  21,  1904,  92,  of 
Dec.  16,  1904,  m173 

Macchio,  Charles,  Baron,  delegate 
of  Austria-Hungary  to  second  con- 
ference. ii261 

Macedo,  Count  de,  delegate  of 
Portugal  to  first  conference,  m71 
Machado,  Jose  Tible,  delegate  of 
Guatemala,  m271 

Machain,  Eusebio,  delegate  of  Para- 
guay, ii277 

Mackintosh,  Sir  James,  on  mediation 
and  arbitration,  260 
Mahan,  Alfred  T.,  Captain,  dele- 
gate of  United  States  to  first  con- 
ference, w67;  amendments  to 
convention  for  adaptation  to 
naval  war  of  principles  of  Geneva 
convention  presented  by,  609; 
declaration  concerning  arma- 
ments and  budgets,  57-59;  men- 
tioned, 80;  paper  read  by,  con- 
taining additional  articles  on  neu- 
tral hospital  ships,  m44-45;  per- 
sonality, 147,  152-154;  promi- 
nent delegate,  150 
Mail  vessels  exempt  from  capture, 
m465,  135,  617-618 
Maine,  The,  destruction  of,  men- 
tioned, 268 

Maintenance  of  general  peace,  ii\-2, 
US'S,  m311,  256 

Maintenance  of  prisoners  of  war. 
Ml  19 

Majority  vote  not  sufficient  to  in- 
clude project  in  final  act,  374, 
383-385 

Mancini’s  motion  in  Chamber  of 
Deputies  quoted,  252 
Manner  in  which  work  of  conference 
may  be  set  forth,  124-125 
Mansfield,  Lord,  quoted,  557-558; 

mentioned,  135 
Marine  insurance,  m221 
Maritime  Conference  at  London: 
called  to  codify  law  to  be  admin- 
istered in  international  prize 
court,  496,  511;  mentioned,  729; 
suggested  compromise  at,  on 
contraband,  blockade,  destruc- 
tion of  neutral  prizes  and  con- 
tinuous voyages,  729;  United 
States  adjourned  consideration 
of  international  prize  court  con- 


864 


INDEX 


vention  until  result  of,  is  known, 
w503 

Marschall  von  Bieberstein,  Baron, 
German  delegate  to  second  con- 
ference, 0257;  discussion  of  com- 
pulsory arbitration  in  commission, 
352;  in  debate,  177;  manner  of 
delivering  addresses,  174;  men- 
tioned, 112,  41671,  549,  705;  pre- 
sented proposition  for  interna- 
tional prize  court,  120-121;  per- 
sonality, 155-156,  167-158;  re- 
marks concerning  inclusion  in 
final  act  of  project  voted  by 
majority,  384;  remarks  support- 
ing project  for  court  of  arbitral 
justice,  434;  speech  concerning 
mines,  586;  speech  in  sub-com- 
mission on  compulsory  arbitra- 
tion, 339-340;  speech  in  commis- 
sion on  compulsory  arbitration, 
353-358;  statement  concerning 
contract  debts,  416;  statement 
concerning  compulsory  arbitra- 
tion in  first  commssion,  127; 
statement  concerning  legislation 
to  give  effect  to  arbitral  decision, 
344;  supported  Italian  resolution 
of  compulsory  arbitration,  380 
Marshall,  Chief  Justice,  in  “The 
Antelope,  ” quoted,  471 
Martens,  M.  de,  delegate  of  Monte- 
negro to  second  conference,  m275 
Martens,  M.  de,  delegate  of  Russia 
to  first  and  second  conferences, 
m73,  ii281 ; arbitrator  in  Venezue- 
lan cases  before  permanent  court 
of  arbitration,  315-316  ;introduced 
conciliatory  project  of  compulsory 
arbitration,  374-376;  judge  in 
Pious  Fund  case  before  perma- 
nent court  of  arbitration,  313; 
manner  of  delivering  addresses, 
174;  mentioned,  63,  64,  78,  81, 
134,  338,  503,  618,  699; person- 
ality, 148-149,  151-152,  161-162; 
presented  Russian  project  for 
court  of  arbitral  justice,  433- 
434;  president  fourth  commis- 
sion second  conference,  115,  fi203; 
prominent  delegate,  150;  propo- 
sition for  judicial  committee,  428; 
question  concerning  application 
of  contract  debt  convention,  415- 
416;  “Question  du desarmement, 
etc.,”  cited,  33;  remarks  con- 
cerning inclusion  in  final  act  of 
project  voted  by  majority,  384 
Martin,  Juan  A.,  Captain,  delegate 


of  Argentine  Republic,  m261;  per- 
sonality, 157 

Mascat  controversy  decided  by  per- 
manent court  of  arbitration,  316 
Maschine,  Colonel,  delegate  of  Servia 
to  first  conference,  m73 
Massachusetts  v.  New  York,  re- 
ferred to,  462^63 
Massachusetts  legislature,  resolu- 
tion of,  of  1903,  89 
Massachusetts  Peace  Society,  men- 
tioned, 682 

Matheu,  Pedro  J.,  delegate  of  Sal- 
vador, m281 

Matte,  Augusto,  delegate  of  Chile, 
m265 

Matzen,  Dr.,  umpire  in  Pious  Fund 
case,  313 

Mavrocordato,  Edgard,  delegate  of 
Roumania  to  second  conference, 
m279 

McKinley,  President,  and  Holls’ 
special  mediation,  264n 
Means  of  injuring  the  enemy,  fi49, 
m127,  M215-216,  m387-391,  534 
Means  of  transportation  in  occupied 
territory,  m139,  ii399 
Medals  presented  to  delegates  by 
Queen  of  the  Netherlands,  183 
Mediation.  See  Good  oflBces;  Special 
mediation 

Mediator,  part  of,  and  end  of  func- 
tions, m83,  ii85,  ff3 11-313,  257 
Medical  staffs  of  captured  ships, 
m147,  m435,  608-609 
Medina,  Crisanto,  delegate  of  Nica- 
ragua, m275 

Mehemmed  Pasha,  Turkish  dele- 
gate to  first  and  second  confer- 
ences, u75,  w283 

Memorandum,  Russian:  of  Sept. 
13,  1905,  93w;  of  Nov.  12,  1906, 
104-105 

Memorandum,  United  States,  of 
October  12,  1905,  94-95 
Merchant  marine,  incorporation  into 
navy,  571-572 

Merchant  ship,  when  validity  of 
capture  of,  decided  by  inter- 
national prize  court,  n473 
Merchant  ships  converted  into  war- 
ships: bear  marks  of  warship, 
m423,  573;  in  Russian  circular  of 
April  12,  1906,  m176;  observe 
laws  and  customs  of  war,  m425, 
573;  placed  under  power  whose 
flag  it  flies,  m423,  573;  subject  to 
military  discipline,  m425,  573 
Merchant  ships,  departure  of,  on 


INDEX 


865 


outbreak  of  hostilities,  ff415— 417, 
564 

Merchant  ships  on  high  seas  at  out- 
break of  hostilities,  m417,  566-567 
Merchant  ships,  neutral,  taking  on 
board  sick  and  wounded,  m453, 
608 

Merey,  M.  de,  delegate  of  Austria- 
Hungary  to  first  and  second  con- 
ferences, m63,  m261;  discussion 
of  compulsory  arbitration  in  com- 
mission, 352;  introduced  resolu- 
tion concerning  compulsory  arbi- 
tion,  376;  on  sub-committee  to 
consider  effect  of  arbitral  award, 
345;  personality,  146,  157-158; 
supported  Italian  resolution  of 
compulsory  arbitration,  380 
Merigrihac,  quoted,  196,  198,  199, 
209 

Message  of  President  Roosevelt  on 
international  prize  court,  508 
Methods  of  appointing  judges  of 
court  of  arbitral  justice,  457-459 
Meurer’s  estimate  of  personalities 
of  delegates  to  first  conference, 
152-154 

Mexico;  arbitral  clause  in  treaty  of 
1848  quoted,  251;  arbitration 
under  treaty  of  1868,  243-244; 
delegation  to  first  conference, 
m67;  delegation  to  second  con- 
ference, 0275]  presented  com- 
pulsory arbitration  treaty,  332; 
reply  to  United  States  circular  of 
Oct.  21,  1904,  92;  reply  to  United 
States  circular  of  Dec.  16,  1904, 
m173;  reserved  in  voting  for  court 
of  arbitral  justice,  435;  supported 
court  of  arbitral  justice,  434-435 

Michelson,  Colonel,  Russian  dele- 
gate to  second  conference,  n281 

Middle  ages:  arbitral  procedure  in, 
207;  distinction  between  arbitra- 
tion and  mediation  in,  208-209; 
equality  of  states  in,  200;  rules 
prescribed  for  arbitrations  in,  207 ; 
use  of  compromis  in,  207 

Mier,  Sebastian  B.  de,  Mexican  dele- 
gate to  first  and  second  confer- 
ences, m67,  ii275 

Mihtary  armaments.  See  Armaments 

Military  authority  over  hostile  terri- 
tory, ii50-51,  wl35-139,  m216, 
U395-401,  538-539 

Military  charges  on  foreigners,  rec- 
ommendation concerning,  m289; 
report  of  American  delegation, 
M248-249 

Military  charges,  restriction  of. 


resolution  concerning,  ii27,  ii77, 
M243-244,  m289. 

See  Armaments 

Military  experts.  See  Technical  and 
scientific  delegates 
Military  insignia  or  imiform  of 
enemy,  forbidden  to  make  im- 
proper use  of,  m127,  m387-389, 
535 

Military  operations  not  suspended 
by  armistice,  m133,  m393;  nor  by 
acceptance  of  good  offices  and 
mediation,  m85,  m3  13,  257 
Military  works  may  be  destroyed 
by  naval  force,  m439,  595 
Militch^vitch,  Michel,  delegate  of 
Servia  to  second,  conference, 
m281 

Militia  and  volunteers,  m117,  iiZ77, 
528-529 

Milovanovitch,  Milovan,  delegate  of 
Servia  to  second  conference, 
m281;  amendment  of  report  of 
sub-committee  on  effect  of  arbi- 
tral award,  345;  criticism  of 
term  “contractual  debts,”  416; 
presented  project  of  compulsory 
arbitration,  336;  supported  court 
of  arbitral  justice,  434-435 
Milton,  mentioned,  681 
Milutine,  General,  mentioned,  21 
Mines,  submarine:  in  Russian  circu- 
lar of  April  12,  1906,  wl76;  re- 
port of  American  delegation  to 
second  conference,  m223;  conven- 
tion relative  to,  m429-437;  sub- 
ject discussed,  576-587;  consent 
of  Senate  to  ratification  of  con- 
vention, M437n;  reservations  to 
convention,  m537  ; undefended 
ports  may  not  be  bombarded 
because  mines  are  anchored  off 
harbor,  m439,  597;  use  of,  in 
blockade,  582 
Ministers,  foreign,  fi51 
Minority  vote  excludes  project 
from  final  act,  374,  383-385 
Minutes  of  conference,  122 
Minutes  of  international  commis- 
sion of  inquiry,  m323,  272 
Minutes  of  international  prize  court, 
m493 

Minutes  of  permanent  court  of  arbi- 
tration, wlOl,  m341-343,  297 
Mirza  Ahmed  Khan  Sadig  ul  Mulk, 
Persian  delegate  to  second  con- 
ference, m279 

Mirza  Riza  Khan,  General,  Persian 
delegate  to  first  conference,  w71; 


866 


INDEX 


humorous  incident  concerning 
Russian  Emperor  and,  178 
Mirza  Samad  Khan,  Persian  dele- 
gate to  first  conference,  w71;  sup- 
ported court  of  arbitral  justice, 
434-435 

Mixed  commission:  arbitration  by 
single  individual  and  by,  219, 
223;  essence  of,  222;  in  which 
foreigners  dominate,  222-223; 
of  1853  between  Great  Britain 
and  United  States,  referred  to, 
236;  under  Jay’s  treaty,  211-212; 
controversy  in,  under  Jay’s 
treaty  concerning  power  of  com- 
mission to  determine  its  jurisdic- 
tion, 30071 

Miyatovitch,  M.,  delegate  of  Servia 
to  first  conference,  7i73 
Mobilization  not  interrupted  by 
acceptance  of  good  offices  and 
mediation,  ii85,  m313,  257 
Modification  of  composition  of 
international  prize  court,  m503 
Modification  of  convention  con- 
cerning procedure  of  interna- 
tional prize  court,  m497 
Modifications  of  convention  con- 
cerning procedure  of  court  of 
arbitral  justice,  m307,  456 
Monetary  conventions,  compulsory 
arbitration  of,  325 
Monroe  Doctrine;  and  Drago  doc- 
trine closely  related,  395,  420- 
422;  mentioned,  96 
See  Entangling  alliances 
Montenegro:  delegation  to  first 
conference,  m71;  delegation  to 
second  conference,  m275;  invited 
to  first  conference,  47 ; represented 
by  Russia,  149;  reservation  to 
convention  of  1907  respecting  the 
laws  and  customs  of  war  on  land, 
m537 

Montojo,  J.  Jofre,  delegate  of  Spain 
to  second  conference,  u269 
Monuments,  historical,  7il39.  m216, 
0389,  m401,  m441,  536,  539,  597 
Moore,  J.  B.,  quoted,  25,  225,  240, 
242,  248,  252-253,  559,  561-562, 
629-630,  718,  720-721 
Morocco;  controversy  between 
France  and  Germany  concern- 
ing, to  be  submitted  to  permanent 
court  of  arbitration,  317;  France 
in,  referred  to,  88 
Motono,  I.,  Japanese  delegate  to 
first  conference,  m69;  represented 
Japan  in  perpetual  lease  case 


before  permanent  court  of  arbi- 
tration, 315 

Mounier,  General,  French  delegate 
to  first  conference,  067;  person- 
ality, 150;  prominent  delegate, 
152-154 

Moura,  Tancredo  Burlamaqui  de, 
delegate  of  Brazil,  m263;  person- 
ality, 157 

Mouravieff,  Count,  mentioned,  ul; 
preliminary  program  of  first  con- 
ference of,  41-^277;  responsible 
for  calling  first  conference,  39?i, 
4l7i;  umpire  in  Venezuelan  cases 
before  permanent  court  of  arbi- 
tration, 315-316 

Movable  property  in  occupied  terri- 
tory, m139,  0399,  552,  553,  554 
Moyle,  Dr.,  quoted,  190 
Moynier,  Gustave,  mentioned,  20 
Municipalities,  property  of,  n401, 
539 

Munitions  of  war:  export  of,  from 
neutral  state,  0238,  ii405,  545; 
in  occupied  territory,  m139,  m399; 
not  to  be  moved  across  neutral 
territory,  m403,  544 
Munster,  Count,  delegate  of  Ger- 
many to  first  conference,  063; 
interview  with  Mr.  White  con- 
cerning permanent  court  of  arbi- 
tration, 72-76;  mentioned,  71; 
personality,  148 

Muskets:  report  of  American  dele- 
gation to  first  conference,  027 ; 
report  of  Captain  Crozier,  ii31-32 ; 
recommendation  of  first  confer- 
ence concerning,  079 
See  Firearms 

Napoleon  III,  mentioned,  33 
Nariibal,  Luang  Bhuvanarth,  Cap- 
tain, delegate  of  Siam  to  second 
conference,  m283 

National  courts  of  prize,  appeal  to, 
m477,  476,  502 

Nationalization  of  prize  courts,  472 
Nationals  not  taking  part  in  war 
are  neutrals,  ii409,  551 
Nature  and  purpose  of  an  inter- 
national conference,  35-39 
Nature,  origin  and  practice  of  inter- 
national arbitration,  188-253 
Naval  armaments.  See  Armaments 
Naval  conference.  See  Maritime  con- 
ference 

Naval  establishments  may  be  bom- 
barded, ti439,  595 
Naval  experts.  See  Technical  and 
scientific  delegates. 


INDEX 


867 


Naval  forces,  bombardment  by. 

See  Bombardment. 

Naval  officers  in  international  prize 
court,  m483,  507-508 
Naval  War  Code  referred  to,  m194, 
515n,  594 

Naval  war,  adaptation  of  Geneva 
Convention  to,  ii289,  63-64,  133- 
134,  600 

See  Adaptation,  etc. 

Navigation  of  the  Rhine,  arbitra- 
tion by  commission,  233 
Navigation,  treaties  of,  in  Portu- 
guese project  of  compulsory  arbi- 
tration, 349 

Nelidow,  M.,  delegate  of  Russia  to 
second  conference,  u281 ; dele- 
gate of  Montenegro  to  second  con- 
ference, ii275;  introduced  reso- 
lution concerning  third  confer- 
ence, 735;  mentioned,  115,  665, 
666;  personality,  161-162;  presi- 
dent of  second  conference,  108, 
m201  ; proposed  committee  to 
formulate  declaration  of  com- 
pulsory arbitration,  381;  pro- 
posed telegrams  to  Queen  of  the 
Netherlands  and  President  Roose- 
velt, 141-142;  remarks  concern- 
ing declaration  of  compulsory 
arbitration,  383;  speech  concern- 
ing limitation  of  armaments,  667 ; 
speech  on  assuming  presidency  of 
conference,  108-110;  speech  at 
closing  of  conference,  140-142. 
Nelson,  Justice,  mentioned,  499 
Netherlands,  The;  declaration  con- 
cerning throwing  projectiles  from 
balloons  presented  by,  to  first 
conference,  649;  delegates  to  first 
conference,  m71;  delegates  to 
second  conference,  ii277;  person- 
alities of  delegates  to  second  con- 
ference, 160-161;  invitation  of, 
to  powers  to  participate  in  first 
conference,  47;  note  to  United 
States  of  May  7, 1907,  concerning 
adhesion  of  non-signatory  states 
to  convention  of  1899,  768;  reply 
to  United  States  circular  of  Oct. 
21,  1904,  92;  reply  to  United 
States  circular  of  Dec.  16,  1904, 
m173;  reservation  to  program 
of  second  conference,  105-106; 
telegram  to  Queen  of,  from  sec- 
ond conference,  141-142 
Neutral  goods,  provision  in  Declara- 
tion of  Paris  concerning,  17 
Neutral  governments:  appeals  to 
international  prize  court  by. 


m475;  exercise  of  rights  not  an 
unfriendly  act,  m241,  ii519,  647; 
laying  of  mines  off  coast  by, 
n431,  582-583;  resistance  of,  to 
violations  of  its  territory  not  a 
hostile  act,  m405,  545;  to  forbid 
nationals  from  serving  with  bel- 
ligerents, 552,  553 ; to  prevent  fit- 
ting out  of  hostile  vessels  in  its 
jurisdiction,  m238,  m511,  631- 
632 ; to  prevent  violation  of  con- 
vention concerning  rights  and 
duties  of  neutral  powers  in  naval 
war,  ft241 

Neutral  mail  ships,  m465,  616-617 
Neutral  persons,  m218-219,  u409, 
550;  committing  hostile  act  can- 
not avail  of  neutrality,  m409,  551 ; 
contributions  upon,  in  belligerent 
territory,  552,  553;  German  pro- 
posed additional  articles  concern- 
ing, in  belligerent  territory,  541- 
542,  549,  550-554,  826;  principles 
of  nationality  and  enemy  domicile 
discussed,  541,  542,  549 
Neutral  ports,  not  to  be  used  as 
base  of  operations,  m238,  ii509, 
626-627 

See  Belligerent  warships  in 
Neutral  property  in  belligerent  ter- 
ritory, 552,  553,  554,  827 
Neutral  territory:  inviolable,  m403, 
m509,  621;  measures  of  restric- 
tion to  be  applied  impartially  to 
belligerents,  m405,  546;  passage  of 
sick  and  wounded  through,  11141, 
m407,  548-549;  persons  cross- 
ing, separately,  m405,  545;  re- 
cruiting agencies  not  to  be  opened 
on,  544;  wireless  telegraph  sta- 
tions not  to  be  installed  on,  m238, 
ii403,  544 

Neutral  ships  carrying  sick  and 
wounded,  fi39-44,  ii44-45,  m147 
Neutral  waters:  inviolable,  m509, 
621;  capture  and  search  in,  vio- 
lates neutrality,  m509,  622;  not 
to  be  used  as  base  of  naval  opera- 
tions, and  wireless  telegraph  ap- 
paratus not  to  be  installed,  m509, 
626-627 ; passage  of  warships  and 
prizes  through,  m511,  633 
Neutrality  not  affected  by  passage 
of  warships  and  prizes  through 
territorial  waters,  w511,  633 
Neutralization  of  ships  and  boats 
saving  shipwrecked,  u4,  08,  020- 
21 

Neutrals:  as  parties  before  inter- 
national prize  court,  w475,  484- 


868 


INDEX 


486;  effect  of  outbreak  of  war 
upon,  516-517;  interests  of  in 
war,  258;  safeguarding  interests 
of,  fundamental  principle  of  in- 
ternational prize  court,  467 
See  Rights  and  duties  of  neutrals 
Newel,  Stanford,  delegate  of  United 
States  to  first  conference,  u67; 
personality,  147 

New  facts,  documents  and  papers 
before  permanent  court  of  arbi- 
tration, filOS,  m343,  296,  297 
Newfoundland  Fisheries  case  to  be 
submitted  to  permanent  court  of 
arbitration,  317 

New  Jersey  v.  Virginia  and  United 
States  (over  Indiana)  referred  to, 
462 

Newspaper  correspondents,  m123, 
m383,  533 

New  treaties  of  compulsory  arbi- 
tration, u91,  m327,  277,  279,  326- 
328 

New  York  Peace  Society,  mentioned 
682 

Nicaragua  represented  at  second 
conference,  ul80n;  delegation, 
m2  7 5 

Nicholas  II,  mentioned,  736 
Nicholl,  John,  mentioned,  218 
Nigra,  Count,  delegate  of  Italy  to 
first  conference,  ii69;  mentioned, 
73,  78,  342n;  opinion  as  to  article 
concerning  new  treaties  of  arbi- 
tration, 328;  personality,  148, 151 
-154 

Non-combatants  treated  as  pris- 
oners of  war,  m377,  531 
Non-signatory  states.  See  Adher- 
ence of,  and  Latin- America 
Northeastern  fisheries  case  to  be 
submitted  to  permanent  court  of 
arbitration,  317 

Northwest  boundary  controversy 
with  Great  Britain  arbitrated 
under  treaty  of  Washington,  243 
Norwall,  Emile  Konek  de,  delegate 
of  Austria-Hungary  to  second 
conference,  m261 

Norway:  delegation  to  first  con- 
ference, m75  ; delegation  to  second 
conference,  m275;  favored  British 
contraband  proposition,  712;  per- 
sonalities of  delegates  to  second 
conference,  160;  reply  to  United 
States  circular  of  Oct.  21, 1904, 92; 
reply  to  United  States  circular  of 
Dec.  16,  1904,  m173 
Note  of  Netherlands  Government 
of  May  7,  1907,  concerning  ad- 


hesion of  non-signatory  states  to 
convention  of  1899,  768 
Note,  Russian:  of  April  12,  1906, 
99-100;  of  March  22  and  April  4, 
1907,  105-106 

Note,  United  States:  of  April  6, 
1906,  98-99;  of  April  19.  1906, 
100;  of  March  26,  1907,  105 
Notice  of  appeal  to  international 
prize  court,  m489 

Notices,  service  of:  for  court  of  ar- 
bitral justice,  m303,  456;  for  in- 
ternational commission  of  inquiry 
m321,  270;  for  international  prize 
court,  U487 ; for  permanent  court 
of  arbitration,  ii345,  297 
Notification  of  armistices,  m133, 
ii395 

Noury  Bey,  Turkish  delegate  to 
first  conference,  ii75 
Novara,  Austrian  corvette,  men- 
tioned, 618n 

Number  of  arbitrations  in  19th  cen- 
tury, 224-229 

Number  of  judges  of  court  of  arbi- 
tral justice  not  specified,  445. 
Number  of  judges  of  international 
prize  court,  503,  m481 
Nuvatr,  Phya  Suriya,  delegate  of 
Siam  to  first  conference,  m73 
Nys,  Ernest,  mentioned,  741 

Oaths  of  allegiance,  inhabitants  of 
occupied  territory  not  to  be  com- 
pelled to  take,  m50,  m135,  m387- 
389,  m397,  535 

Oaths  of  judges  and  deputy  judges 
of  court  of  arbitral  justice,  m293; 
of  international  prize  court,  m481 
Object  of  arbitration,  n89,  ti325, 
275,  309-310 

Object  of  the  permanent  court,  425 
Objections  before  permanent  court 
of  arbitration,  m103,  m343,  299 
Objections  to  compulsory  arbitra- 
tion, ^333-334 

Odier,  Edouard,  delegate  of  Switzer- 
land to  first  conference,  ft75;  per- 
sonality, 51-52 

Obligatory  arbitration.  See  Com- 
pulsory arbitration 
Occupied  territory:  contributions 
and  requisitions  in,  m50-51,  u137, 
m397,  m399  ; inhabitants  of,  m47- 
48,  not  to  be  compelled  to  take 
oath  of  allegiance,  m50,  m135, 
m387-389,  m397  ; inhabitants  not 
to  be  punished  for  acts  of  indi- 
viduals, ul37,  m399;  inhabitants 
not  to  be  compelled  to  take  part 


INDEX 


869 


in  war,  iil35;  not  to  be  forced  to 
furnish  information,  w397;  laws 
of,  to  be  respected,  m135,  m397; 
means  of  communication  and 
transportation  in,  m216;  report 
of  Captain  Crozier,  ii47-48;  req- 
uisitions in  kind,  m399;  taxes, 
dues  and  tolls,  m137,  m397;  un- 
organized inhabitants,  m377,  530- 
531;  what  is,  wl35,  w395 
Officers  of  captured  enemy  mer- 
chant ships,  m467,  619,  620 
Officers  of  commissions  and  sub- 
commissions of  second  conference, 
114-115 

Officers  of  second  conference,  u203 
Officers,  prisoners  of  war,  m125, 
u215,  m385,  535 

Officers,  wounded,  not  sent  home 
after  cure,  601 

Official  correspondence  relating  to 
second  conference,  ffl68 
d’Okolicsna,  Alexandre  Okolicsanyi, 
M.,  delegate  of  Austria-Hungary 
to  first  conference,  w63 
d’Oliviera,  Alberto,  delegate  of 
Portugal  to  second  conference, 
m279;  discussion  of  compulsory 
arbitration,  353;  personality,  161 
Olney,  Secretary,  instructions  in 
Hollander  case,  mentioned,  686n 
Oordt,  H.  L.  van,  Lieut  .-Colonel, 
delegate  of  the  Netherlands  to 
second  conference,  ii277 
Opening  of  hostilities:  discussed, 
516-522;  convention  of  1907, 
m363-367;  in  second  commission 
of  second  conference,  132 ; powers 
bound  by  convention,  m363-365; 
Renault’s  report  concerning,  518; 
report  of  American  delegation, 
m213-214;  consent  of  Senate  to 
ratification  of  convention,  u367a; 
with  declaration  or  ultimatum, 
ii363,  518-519 

Opening  of  first  conference,  47-54 
Opening  of  second  conference,  107- 
112 

Oppenheim’s  International  Law, 
quoted,  15n,  24n,  472-473,  513- 
516 

Ordinances  concerning  belligerent 
warships  to  be  exchanged,  m241. 
m519,  648 

Ordonez,  Jos6  Batlle  y,  delegate  of 
Uruguay,  u285 

d’Orelli,  Corragioni,  Siamese  dele- 
gate to  first  and  second  confer- 
ences. u75,  m283 


Organization  of  first  conference 
m17-18,  51-53 

Organization  of  international  prize 
court,  M483-487,  503-508 
d’Ornellas,  Ayres,  Captain,  dele- 
gate of  Portugal  to  first  confer- 
ence, m71 

d’Omellas,  Vasconcellos,  delegate  of 
Portugal  to  first  conference,  ii71 
Orow,  Prince,  mentioned,  22 
Osborn,  Mr.,  Mr.  Blaine  to,  con- 
cerning first  international  con- 
gress of  American  states,  753 
Ottley,  C.  L.,  Captain,  delegate  of 
Great  Britain  to  second  confer- 
ence, ii27l 

Ovtchinnikow,  Colonel,  Russian 
delegate  to  first  and  second  con- 
ferences, ii73,  ii281;  personality, 
148-149 

Oxford  Manual;  based  upon  Dr. 
Lieber’s  Instructions,  526 ; quoted, 
592n 

Palmerston  Lord,  mentioned,  235, 
402,  409 

Panama:  at  second  conference, 
Ml80n;  delegation,  u277;  sup- 
ported court  of  arbitral  justice, 
434-435 

Panama  Congressof  1826  mentioned 

8 

Pan-American  Conference.  See  In- 
ternational Conference  of  Ameri- 
can States 

Pan-American  Exposition  of  1901, 
mentioned,  684 
Papacy.  See  Pope 
Paper  blockades,  719-720 
Paper  read  by  Captain  Mahan  con- 
cerning neutral  hospitals  ships  and 
vessels  carrying  sick  and  wounded, 
ff44-45 

Papiniu,  Jean  N.,  delegate  of  Rou- 
mania  to  first  conference,  ii73 
Paquete  Habana,  The.  cited,  617 
Paraguay,  delegation  to  second 
conference,  ii277 

Paris,  See  Congress  of.  Declaration 
of 

Parliamentary  conference,  differ- 
ence between  international  con- 
ference and,  35-37 
Parliamentary  procedure  of  con- 
ference, 61-62,  120 
Parole  of  belligerent  troop.s  in  neu- 
tral territory,  w407,  547 
Parole  of  prisoners  of  war,  m121- 
123,  ti381,  532 


870 


INDEX 


Parties  to  a ease  before  international 
prize  court,  m493,  484^88 
Passage  of  belligerent  warships  and 
prizes  through  territorial  waters, 
n238-239,  iibll,  633 
Passy,  Frederic,  mentioned,  684 
Pastoral  letter  from  Protestant 
Episcopal  Bishop  of  Texas  con- 
cerning arbitration,  76-77/1 
Pauncefote,  Sir  Julian,  delegate  of 
Great  Britain  to  first  conference, 
ff67 ; discussion  of  compulsory 
arbitration,  325;  mentioned,  324; 
personality,  148,  151-154;  propo- 
sition for  permanent  court  of  ar- 
bitration, 278-279,  796;  speech 
concerning  establishment  of  per- 
manent court  of  arbitration,  69- 
70 

Peace  conferences  in  the  develop- 
ment of  international  law  and 
the  Hague  conference,  23-25, 
732-733 

See  Conferences  in  Peace  for  regu- 
lation of  war 

Peace,  general,  maintenance  of, 
m1-2,  w83,  m311,  256 
Peace  of  Westphalia  in  develop- 
ment of  international  congress, 
9-13 

See  Treaties  of  Westphalia 
Peace  societies:  as  factors  that  make 
for  peace,  682;  referred  to,  248- 
249 

Peace  Society  of  England,  men- 
tioned, 251 

Peaceful  settlement  of  interna- 
tional disputes:  convention  of 
1899,  ti8i-110;  convention  of 
1907,  ii309-355;  discussed,  254- 
318;  difficulties  met  and  over- 
come in  drafting  convention,  305; 
in  Russian  circular  of  January 
11,  1899;  n4;  in  Russian  circular 
of  April  12,  1906,  fil76;  at  the 
first  conference,  66-87 ; at  the 
second  conference,  125-120;  re- 
port of  American  delegation  to 
first  conference,  m26;  report  of 
Messrs.  White,  Low  and  Holls, 
ff52-60;  report  of  American  dele- 
gation to  second  conference, 
m205-212;  convention  of  1907 
replaces  convention  of  1899, 
m351;  consent  of  Senate  to  rati- 
fication of  convention  of  1907, 
iiZ55-357n;  recommendations  of 
Russian  circulars  concerning, 
255;  reservations  to  convention 
of  1899,  W165-167;  reservations 


to  convention  of  1907,  u533; 
Russo-Japanese  war  terminated 
through  use  of  convention  of  1899, 
125;  treaties  of  arbitration  result- 
ing from  convention  of  1899, 
125-126 

<See  Good  offices.  International 
commissions  of  inquiry.  Per- 
manent court  of  arbitration 
Peckham,  Justice:  opinion  in  The 
Buena  Ventura,  quoted,  561- 
562 ; opinion  in  The  Pedro  referred 
to,  566 

Pecuniary  claims,  inclusion  of,  in 
compulsory  arbitration  treaty, 
352n 

Pedro,  The,  referred  to,  565-566 
Peel,  Sir  Robert,  quoted  on  reduc- 
tion of  armaments,  31 
Peirce,  H.  H.  D.,  mentioned,  42n 
Pellet,  Marcellin,  French  delegate 
to  second  conference,  u269 
Penfield,  William  L.,  counsel  in 
Pious  Fund  case,  313 
Penn,  William:  European  Diet, 
Parliament,  or  Estates  discussed, 
744,  749;  mentioned,  26,  663,  744 
Pennsylvania  v.  Connecticut,  461- 
462,  510 

Pennsylvania,  memorial  to  Con- 
gress concerning  stated  inter- 
national conference,  89-90 
Pephau,  Rear-Admiral,  French  dele- 
gate to  first  conference,  iiQ7 ; per- 
sonality, 150,  152-154 
Periodic  conferences,  ffl84,  735, 
738 

Permanent  court  of  arbitration: 
convention  of  1899,  n91-97;  con- 
vention of  1907,  w327-335;  dis- 
cussed, 274-286,  423-430 ; Ameri- 
can plan  for,  nl5-16,  280,  821; 
American  plan  published  previous 
to  distribution  in  conference,  54^ 
55;  American  propositions  for, 
history  of,  m9-14;  British  pro- 
posal, 280,  796,  798;  cases  de- 
cided by,  312-318;  cases  to  be 
submitted  to,  317 ; German  oppo- 
sition to,  75;  instructions  to 
American  delegation  to  first  con- 
ference, ii8-9;  not  a permanent 
court,  425,  442-443;  not  sup- 
planted by  court  of  arbitral  jus- 
tice, m291,  435-436,  442-443; 
Russian  circular  of  April  12, 1906, 
concerning  improvements  in, 
m176;  Russian  project,  280;  re- 
port of  American  delegation  to 
first  conference,  ff22-23;  report 


INDEX 


871 


of  Messrs.  White,  Low  and  Holls, 
m53-59;  report  of  American  dele- 
gation to  second  conference,  m210- 
212;  Russian  program  of  first 
conference  did  not  include,  277 
Perpetual  leases  in  Japan  decided 
bv  permanent  court  of  arbitration, 
314-315 

Perpetual  peace,  projects  for,  26- 
30 

Persia,  arbitration  in  ancient,  195 
Persia:  delegation  to  first  confer- 
ence, m71;  delegation  to  second 
conference,  ii279;  humorous  inci- 
dent of  delegate  of,  to  first  con- 
ference and  the  Russian  Em- 
peror, 178;  reservations  to  con- 
ventions of  1907,  m539,  m541 ; 
supported  court  of  arbitral  jus- 
tice, 434—435 

Personalities  of  delegates  to  first 
conference,  147-154 
Personalities  of  delegates  to  second 
conference,  154-163 
Persons  and  papers  on  board  mer- 
chant ships  at  outbreak  of  hos- 
tilities, m417,  566-567 
Persons  crossing  neutral  territory 
separately,  m405,  545 
Peru:  delegation  to  second  con- 
ference, ii277;  initiated  with 
Chile  article  concerning  use  of 
international  bureau  as  means  of 
communication  between  disput- 
ing powers  that  they  are  ready 
to  submit  to  arbitration,  288n; 
reservation  to  contract  debt  con- 
vention, m535,  417 
Peterburg  and  Smolensk  referred 
to,  575 

Peterhoff,  The,  quoted,  706 
Petition  of  American  Peace  Society 
concerning  stated  international 
conference,  89,  757 
Philanthropic  missions  exempt  from 
capture,  ii227,  618 
Phillipson’s  Studies  in  International 
Law  quoted,  220,  222n 
Pillage  prohibited,  ul29,  11135, 

ii391,  m397,  ii443,  n457,  537, 
597,  612 

Pilots  allowed  belligerent  warships, 
u239,  n511,  633 

Pinilla,  Claudio,  delegate  of  Bolivia, 
u263 

Pinkney,  Wm.,  mentioned,  218 
Pious  Fund  case  decided  by  per- 
manent court  of  arbitration,  312- 
314 


Plan  for  permanent  international 
court  of  arbitration,  American, 
til5-16 

Plans  for  establishment  of  inter- 
national congress,  739-750 
Pleadings  before  court  of  arbitral 
justice,  ii303,  455 
Pleadings  before  international  prize 
court,  ti491 

Pleadings  before  permanent  court 
of  arbitration,  n341,  295-296 
Plenipotentiaries  appointed  by  vari- 
ous states  to  second  conference, 
155-163;  distinction  between,  and 
other  members  of  delegation,  113; 
division  of  delegations  into  am- 
bassadors and,  170-171;  number 
of,  appointed  by  each  state  to 
first  conference,  150 
Plungers.  See  Submarine  torpedo- 
boats 

Poison,  prohibition  of  use  of,  iil27. 

n387-389,  535 
Police  duty,  w409,  551,  553 
Policy  of  United  States  toward  arbi- 
tration, 246 

Political  questions  excluded  from 
conference,  m5,  m177,  41n 
Pompilj,  Guido,  delegate  of  Italy  to 
first  and  second  conferences,  m69, 
m273 

Poortugael,  Jonkheer  J.  C.  C.  den 
Beer,  delegate  of  the  Nether- 
lands to  first  and  second  confer- 
ences, w71,  ii277;  mentioned, 
657;  personality,  152-154;  160- 
161;  presented  declaration  con- 
cerning throwing  projectiles  from 
balloons,  649;  prominent  dele- 
gate, 150 

Pope,  correspondence  between  Hol- 
land and  the,  84-85 
Popes  as  arbitrators,  instances  of, 
202 

Porras,  Belisario,  delegate  of  Pana- 
ma, ii277;  supported  court  of 
arbitral  justice,  434-435 
Portendic  claims  arbitrated  between 
France  and  Great  Britain,  234 
Porter,  Horace,  delegate  of  United 
States  to  second  conference, 
fi259;  difference  between  propo- 
sition of,  and  Drago’s  proposition 
concerning  contract  debts,  420; 
honorary  president  second  com- 
mission of  second  conference, 
zi204,  115;  in  debate,  178;  man- 
ner of  delivering  addresses,  174; 
personality,  15^157;  presented 
contract  debt  proposition,  400; 


872 


INDEX 


reply  to  criticism  of  term  “con- 
tractual debts,”  416;  statement 
concerning  abolition  of  privateer- 
ing, 574 ; speech  on  contract  debts, 
401-405 

Portugal:  arbitration  treaty  be- 
tween England  and,  of  1654,  214; 
delegation  to  first  conference, 
m71;  delegation  to  second  con- 
ference, m279;  favored  British 
contraband  proposition, 712;  King 
of,  speech  to  Cortese  quoted, 
7 ; personalities  of  delegates  to 
second  conference,  161;  project 
of  compulsory  arbitration  pre- 
sented to  second  conference,  337; 
project  of  compulsory  arbitra- 
tion before  committee,  349;  reply 
to  United  States  circular  of  Oct. 
21,  1904,  92;  reply  to  United 
States  circular  of  Dec.  16,  1904, 
wl73;  supported  court  of  arbitral 
justice,  434-435 

Postal  correspondence,  m227,  w465, 
615-616 

Powders,  new,  prohibition  of  use  of: 
in  Russian  circular  of  Jan.  11, 
1899,  u4;  instructions  to  Ameri- 
can delegation  to  first  conference, 
m7-8;  discussion  in  first  confer- 
ence, 59-61;  report  of  American 
delegation  to  first  conference, 
M 19-20;  report  of  Captain  Crozier, 
m29-35;  report  of  Captain  Mahan, 
m36-39 

Preferential  treatment  of  Germany, 
Great  Britain  and  Italy  in  Vene- 
zuelan cases,  315-316,  391 

Preparatory  committee  for  third 
conference,  u249-251,  iz289-291, 
136,  736 

President  of  court  of  arbitral  jus- 
tice, m295 

President  of  international  prize 
court,  m483 

President  of  permanent  court  of 
arbitration,  m99,  w339,  293-294 

President  of  second  conference,  108 

Presidents  of  commissions  of  second 
conference,  ii203,  115 

Press,  notices  of  work  of  conference 
given  to,  122 

Price,  Richard,  Benj.  Franklin’s 
letter  to,  of  Feb.  6,  1780,  referred 
to,  677n 

Principles  of  enemy  domicile  and 
nationality  discussed,  541,  542, 
549 

Prisoners  of  war,  m48— 49,  ull7- 
125,  M379-387,  532-535 


Private  parties.  See  Individuals 
Private  property  in  occupied  terri- 
tory, rf49-50,  m135,  m397 
Private  property  of  prisoners  of 
war.  Ml  17-1 19,  m123,  m379,  532 
Privateering,  provision  concerning, 
in  Declaration  of  Paris,  17,  568- 
569 

Privateers  in  Franco-German  war 
of  1870,  571 

Prize  Cases,  The,  quoted,  520-521 
Prize  court:  American  forerunner 
of  international  court,  509-511; 
established  by  Congress,  510;  in 
articles  of  confederation,  509; 
Washin^on’s  letters  to  Congress 
concerning,  509 

Prize  courts  are  international  in 
theory  but  municipal  in  fact,  466- 
473 

Prize  courts,  national,  provisions 
in  international  prize  court  con- 
vention concerning,  m477,  476, 
502 

Prize  courts  cannot  be  established 
on  neutral  territory  or  in  neutral 
waters,  m509,  625 
Prize  crews  in  neutral  port,  u517, 
M623-525,  644-646 
Prizes:  admission  to  neutral  ports, 
m238,  m240-241,  m511,  m517, 
M523-525,  632,  644-646;  cap- 
tured in  territorial  waters,  m238, 
ii509,  m523-525,  623-624;  pas- 
sage through  territorial  waters, 
M238-239,  m511,  633 
See  Destruction  of  prizes 
Procedure:  arbitral,  w97,  m335-349, 
286-312;  arbitral  procedure  when 
sovereign  is  arbitrator,  m99, 
ii339;  of  commissions  and  sub- 
commissions, 118-119;  of  court 
of  arbitral  justice,  m299-307,  455, 
456 ; of  delegation  of  court  of  arbi- 
tral justice,  ft305;  of  first  con- 
ference, 51-53,  61-64;  of  inter- 
national commission  of  inquiry, 
iiSl,  m317-319,  268-269;  of  inter- 
national prize  court,  ti487-497; 
of  permanent  court  of  arbitration, 
m105,  mIOI,  m341,  m345,  295,  298; 
of  second  conference,  112-124;  of 
tribunal  of  summary  procedure, 
ti349,  m351,  302,  303;  under  con- 
tract debt  convention,  it357- 
359,  418-420,  453 
Proces-verbal  of  adhesion  of  non- 
signatory states,  m254-255,  772 


INDEX 


873 


Proces-verbeaux  of  the  conference, 
122;  preparation  of,  124 
iSee  Minutes 

Proclamation  of  neutrality  during 
Civil  War,  mentioned,  522n. 
Production  of  papers  before  per- 
manent court  of  arbitration, 
m343,  297 

Professors  of  international  law 
chosen  as  delegates,  145 
Program  of  conference,  submission  of 
subjects  not  in,  m24-25,  120-122 
Program  of  first  conference:  pre- 
liminary, handed  to  Ambassador 
Hitchcock  by  Count  Mouravieff, 
41-42n;  in  Russian  circular  of 
January  11,  1899,  m4-5;  per- 
manent court  of  arbitration  not 
included  in,  277;  subjects  not 
included  in,  51,  63,  65 
Program  of  second  conference;  cor- 
respondence concerning,  101-106; 
in  Russian  circular  of  April  12, 
1906,  W176-177;  attitude  of 

United  States  concerning,  101- 
102;  limitation  of  armaments  ex- 
cluded from,  m176,  663;  reserva- 
tions of  Great  Britain  to,  105- 
106,  wl82;  reservations  of  Greece 
and  Spain  to,  105-106;  reserva- 
tions of  United  States,  102-106 
Projectiles  containing  gases.  See 
Gases 

Projectiles,  explosive,  use  of,  pro- 
hibited by  Declaration  of  St. 
Petersburg,  21-22 
Projectiles,  throwing  off  from  bal- 
loon.s.  See  Balloons 
Projectiles,  submission  of,  to  con- 
ference, 121 

Prominent  delegates  at  first  con- 
ference, 150 

Proposals  for  international  prize 
court,  472-473 

Protocol  for  additional  subjects  of 
compulsory  arbitration,  quoted, 
371n.;  mentioned,  369 
Protocol  for  submission  of  case  de 
novo  to  international  prize  court, 
proposed,  483-484,  511 
Protocol  of  adherence  of  non-signa- 
tory states  to  convention  of  1899, 
M252-253,  770 
Prowlers,  armed,  m51 
Prozor,  M.,  Russian  delegate  to 
second  conference,  ii28l;  editor 
of  proces- verbal,  124;  personality, 
161-162 

Prussia : arbitration  between  Austria, 
France,  Great  Britain,  Russia 


and,  under  treaty  of  1815,  233; 
rule  concerning  enemy  merchant 
ships  at  outbreak  of  war  with 
Austria,  560 
See  Germany 

Public,  admission  of,  to  conferences, 
122 

Public  blockades,  718 
Public  buildings  in  occupied  terri- 
tory, m139,  m401,  539 
Public  debts.  See  Contract  debts 
Public  opinion,  creation  of,  for 
Hague  conference,  25-34;  in  favor 
of  arbitration,  248-249 
Publication  of  projects  before  sub- 
mission to  conference,  Bin 
Publication  of  Russian  rescript, 
impression  produced,  i2n 
Publicity  of  proceedings  of  confer- 
ence, 53-54 

Qualifications  of  attorneys  before 
international  prize  court,  m487 
Qualifications  of  belligerents,  iiil- 
48,  m117,  u214,  u377,  ii481,  528- 
532 

Qualifications  of  delegates  to  con- 
ference, 144 

Quarter,  prohibited  to  declare  that 
no,  will  be  given,  w49,  fil27, 
M387-389,  535 

Queen  of  the  Netherlands:  medals 
presented  to  delegates  by,  183; 
receptions  to  delegates  by,  182- 
183;  telegram  to,  from  confer- 
ence, 141-142 

Quesada  y Ar6stegui,  Gonzalo  de, 
Cuban  delegate,  ii2Q5 
Questions  involved  in  appeal  from 
national  to  international  court, 
473-484 

Quorum  of  international  prize  court 
m481 

Raffalovich,  M.,  Russian  delegate 
to  first  conference,  u73;  men- 
tioned, 81 

Rahusen,  R.  N.,  Netherlands  dele- 
gate to  first  conference,  u71 
Raif  Bey,  Turkish  delegate  to 
second  conference,  m283 
Railways  in  occupied  territory, 
m139,  m216,  w399 
Railways  of  neutrals  in  occupied 
territory,  m139,  M2i9,  m411,  654— 
555 

Ralston,  Jackson  H.,  agent  in  Pious 
Fund  case,  313 


874 


INDEX 


Rams,  construction  of  vessels  with; 
in  Russian  circular  of  Jan.  11, 
1899,  m4;  instructions  to  Ameri- 
can delegation  to  first  conference, 
fi7-8;  report  of  American  dele- 
gation to  first  conference,  ii\%- 
20;  report  of  Captain  Mahan, 
ii36-39;  discussion  in  first  con- 
ference, 59-61 

Rangabe,  C14on  Rizo,  delegate  of 
Greece  to  second  conference, 
n'271 

Rank  of  delegates,  170-171 

Rank  of  judges  of  court  of  arbitral 
justice,  m293,  446;  of  interna- 
tional prize  court,  ii481 

Ratification  of  convention  for 
adaptation  to  naval  war  of  prin- 
ciples of  Geneva  Convention: 
Convention  of  1899 — provision 
for,  m151;  Convention  of  1907 — 
consent  of  Senate  to,  u463n; 
provisions  for,  h'459;  register  of, 
to  be  kept,  f/463 

Ratification  of  convention  concern- 
ing bombardment  of  undefended 
towns  by  naval  forces:  consent 
of  Senate  to,  iiA^ln;  provisions 
for,  ii443;  register  to  be  kept  of, 
? f44o 

Ratification  of  contract  debt  con- 
vention: consent  of  Senate  to, 
ii361-363?i;  provisions  for,  f?'359; 
register  to  be  kept  of,  u361 

Ratification  of  convention  concern- 
ing conversion  of  merchant  ships: 
provisions  for,  'ii425;  register  to 
be  kept  of,  u427;  convention  not 
signed  by  American  delegation 
and  not  submitted  to  Senate  for 
ratification  «429n,  574 

Ratification  of  convention  concern- 
ing court  of  arbitral  justice,  pro- 
visions for,  7(307 

Ratification  of  convention  concern- 
ing enemy  merchant  ships  at  out- 
break of  hostilities;  not  signed  by 
An\erican  delegation  and  not  sub- 
mitted to  Senate  for  ratification, 
n421n,  568;  provisions  for,  2(419; 
register  of,  to  be  kept,  m421 

Ratification  of  international  prize 
court  convention;  provisions  for, 
n497;  United  States  adjourned 
consideration  of  convention  until 
after  the  maritime  conference  at 
London,  ii503n 

Ratification  of  convention  concern- 
ing laws  and  customs  of  war: 
Convention  of  1899 — provisions 


for,  (ill5;  Convention  of  1907 — 
consent  of  Senate  to,  n401n; 
provisions  for,  m373;  register  to 
be  kept  of,  m375 

Ratification  of  convention  concern- 
ing neutral  powers  in  naval  war; 
consent  of  Senate  to,  ii523~525n; 
provisions  for,  m521;  register  to 
be  kept  of,  ti523 

Ratification  of  convention  concern- 
ing neutral  powers  and  persons 
in  war  on  land:  consent  of  Senate 
to,  ti415n;  provisions  for,  register 
to  be  kept  of,  0413 

Ratification  of  convention  concern- 
ing opening  of  hostilities:  con- 
sent of  Senate  to,  ii367n;  pro- 
visions for,  if 365;  register  to  be 
kept  of,  m367 

Ratification  of  convention  for 
peaceful  settlement  of  inter- 
national disputes:  Convention  of 
1899 — provisions  for,  m107.  Con- 
vention of  1907 — consent  of  Sen- 
ate to,  ii355-357n;  provisions  for, 
12351;  register  to  be  kept  of, 
22355 

Ratification  of  convention  concern- 
ing restrictions  on  the  right  of 
capture:  consent  of  Senate  to, 
22471n;  provisions  for,  22469; 
register  to  be  kept  of,  22471 

Ratification  of  convention  concern- 
ing automatic  submarine  mines; 
consent  of  Senate  to,  22437n;  pro- 
visions for,  22433;  register  to  be 
kept  of,  22437 

Ratification  of  declaration  pro- 
hibiting discharge  of  projectiles 
from  balloons:  consent  of  Senate 
to,  iib27n;  provisions  for,  22525- 
527 

Real  estate  in  occupied  territory, 
22139,  22401,  539 

Reay,  Lord,  delegate  of  Great 
Britain  to  second  conference, 
2(271;  M.  Fromageot’s  summary 
of  speech  of,  supporting  propo- 
sition on  contraband,  715;  men- 
tioned, 716;  personality,  159; 
speech  on  discharge  of  projectiles 
from  balloons,  653 

Recaptured  prisoners  of  war  who 
violate  parole,  22'383 

Receptions  to  delegates,  181-184 

R6chid  Bey,  Turkish  delegate  to 
second  conference,  t2'283 

Recommendations,  the  nature  of, 
and  difference  between  conven- 


INDEX 


875 


tions,  declarations,  resolutions 
and,  136-140. 

Recommendations  of  first  confer- 
ence: concerning  bombardment 
of  ports,  towns  and  villages  by 
naval  force,  ii79;  concerning 
immunity  of  private  property  at 
sea,  ii79;  concerning  limitation 
of  armaments  and  budgets,  ii79; 
concerning  muskets  and  marine 
artillery,  w79;  concerning  revision 
of  Geneva  Convention,  m79;  con- 
cerning rights  and  duties  of  neu- 
trals, u79 

Recommendations  of  second  con- 
ference: concerning  arbitration  of 
legal  questions  and  interpreta- 
tion of  treaties,  m327,  275-276; 
concerning  commercial  and  in- 
industrial relations,  m289;  con- 
cerning court  of  arbitral  justice, 
ti289;  concerning  military  charges 
on  foreigners,  m289;  concerning 
laws  and  customs  of  maritime 
war,  t?:289;  concerning  third  con- 
ference and  appointment  of  pre- 
paratory committee,  it289-291 
Record  of  the  conference,  122-123 
Record  of  prize  case:  in  national 
court  transmitted  to  international 
bureau,  m489,  500;  in  interna- 
tional court  transmitted  to  na- 
tional court,  m495,  500 
Recovery  of  contract  debts.  See 
Contract  debts 
Recovery,  The,  quoted  469 
Recruiting  agencies  not  to  be  opened 
on  neutral  territory,  tf403,  544 
Red  Cross  badges,  improper  use  of, 
prohibited,  mT27,  m387-389,  535 
Red  Cross  Conference,  mentioned, 
684 

Red  Cross  Convention.  See  Geneva 
Convention 

Red  Cross  signs  only  used  for  hos- 
pital ships,  m451,  607 
Register  showing  ratifications,  ad- 
hesions and  denunciations  of  con- 
ventions of  1907,  to  be  kept, 
u355,  n361,  m367,  iiS75,  n413, 
m421,  m427,  w437,  m445,  n463, 
m471,  m523 

R^glement  of  second  conference, 
773-775 

Regulations  of  second  conference, 
m20 1-202 

Regulations  respecting  execution  of 
arbitral  awards  to  be  communi- 
cated to  international  bureau, 
fi91,  n.329,  281 


Regulations  respecting  belligerent 
ships  in  neutral  ports,  exchange 
of,  w241,  m519,  648;  to  be  applied 
impartially,  iioW,  632 
Regulations  respecting  crews  of 
enemy  merchant  ships  captured 
by  belligerent,  m227-228,  m467 
Regulations  respecting  laws  and 
customs  of  war  on  land:  of  1899, 
Ml  17;  of  1907,  U377-387 
Reinsch’s  International  Unions 
and  their  Administration  of  In- 
ternational Law,  mentioned,  687 
Relief  societies  for  prisoners  of  war, 
M123-125,  m385,  534 
Relief  societies,  hospital  ships  of, 
m145,  m449,  602-604 
Religious  buildings.  See  Churches 
Religious  missions  exempt  from 
capture,  ii227,  m467,  618;  not 
subject  to  regulation  as  to  stay 
in  neutral  port,  m’513,  636-637 
Religious  liberty  in  occupied  terri- 
tory, m135,  m'397 

ReUgious  liberty  of  prisoners  of  war, 

m125,  m385 

Religious  staffs  of  captured  ships, 
m147,  m435,  608-609 
Removal  of  submarine  mines,  m431- 
433,  582-584 

Remuneration  of  judges  of  court  of 
arbitral  justice,  ii297,  447;  of  in- 
ternational prize  court,  m483 
Renault,  Louis,  French  delegate  to 
first  and  second  conferences, 
m67,  m269;  article  in  La  Vie  Poli- 
tiques  des  Deux  Mondes,  118;  dis- 
cussion of  compulsory  arbitra- 
tion, 353;  in  debate,  177;  inter- 
pretation of  rules  of  Treaty  of 
Washington,  631-632;  mentioned, 
63,  503;  personality,  152-154, 
158-170;  president  of  comite  de 
redaction,  119;  prominent  dele- 
gate, 150;  remarks  concerning  re- 
ports of  commissions,  117;  quoted 
as  to  commissioners  being  lawyers, 
222;  report  concerning  bellig- 
erent warships  in  neutral  ports 
quoted,  m513,  636;  quoted  as  to 
impartiality  of  umpire,  219;  re- 
port concerning  opening  of  hos- 
tilities, 518;  report  on  law  to  be 
administered  in  international 
prize  court,  m233-236,  491-493; 
represented  plaintiff  in  case  of 
perpetual  leases  in  Japan  before 
permanent  court  of  arbitration, 
315;  speech  in  favor  of  compul- 
sory arbitration,  358-363;  to  be 


876 


INDEX 


arbitrator  in  Moroccan  contro- 
versy before  permanent  court  of 
arbitration,  317;  views  as  to 
equality  of  states  and  the  role  of 
smaller  states  at  an  international 
conference,  165-166 
Rendon,  Victor,  delegate  of  Ecua- 
dor, u267 

Repairs  to  belligerent  warships  in 
neutral  ports,  u239,  m513,  m515, 
636-640 

Repatriation  of  prisoners  of  war, 
m125,  m387,  534 

Replies  to  United  States  circular  of 
Oct.  21, 1904, 92;  of  Dec.  16, 1904, 
m173 

Report  of  American  delegation  to 
first  conference,  m17-29  ; to  second 
conference,  wl98-251 
Report  of  Captain  Crozier  on  ex- 
plosives, powders,  etc.,  w29-35; 
on  laws  and  customs  of  war  on 
land,  m46-52 

Report  of  Captain  Mahan  on  adap- 
tation to  naval  warfare  of  princi- 
ples of  Geneva  Convention  and 
neutralization  of  ships  saving 
those  overboard,  m39-44;  on 
naval  disarmament,  m36-39 
Report  of  international  commis- 
sion of  inquiry,  m87,  ff89,  u325, 
267,  272 

Report  of  Messrs.  White,  Low  and 
Holls  on  good  offices,  mediation 
and  arbitration,  m52-60 
Report  of  work  of  court  of  arbitral 
justice,  m299,  450 
Report  of  work  of  permanent  court 
of  arbitration,  m333-335,  281 
Report  on  Russian  projects  of 
armaments  and  budgets,  56 
Reporters,  newspaper,  treated  as 
prisoners  of  war,  m123,  m383,  533 
Reporters  of  the  commissions  of 
the  conference,  116-118 
Reports  of  commissions  of  the  con- 
ference, 117,  122-123 
Representative  governments,  im- 
portance of,  in  factors  that  make 
for  peace,  689 

Requisitions,  bombardments  to  en- 
force, 590-592 

Requisitions  in  occupied  territory, 
1750-51,  m137,  m397,  m399,  592n 
Rescript,  Russian,  of  August,  1898  r 
quoted,  iil-2;  discussed,  39-44; 
impression  produced  by  pub- 
lication of,  42n 

Reservation  to  convention  of  1899, 
ffl65-167 ; to  conventions  of  1907, 


n533-541;  to  program  of  second 
conference.  wl82.  102-106 
Resolution  concerning  restriction 
of  military  charges:  of  1899,  u77; 
report  of  American  delegation, 
w’27;  of  1907,  m289,  report  of 
American  delegation,  n243-244 
See  Armaments 

Resolution  of  Interparliamentary 
Union  concerning  international 
conference,  90 

Resolution  of  Rio  Conference  con- 
cerning public  debts,  399 
Resolutions,  difference  between  con- 
ventions, declarations,  recom- 
mendations and,  136-140 
Responses.  See  Replies 
Restrictions  on  right  of  capture: 
convention  relative  to,  1x463;  dis- 
cussed, 614-620;  report  of  Ameri- 
can delegation,  ii227-228;  con- 
sent of  Senate  to  ratification, 
w471n 

Retzmann,  Lieut. -Commander,  Ger- 
man delegate  to  second  confer- 
ence, m259 

Revision  of  arbitral  award:  discus- 
sion at  first  conference,  81; 
American  delegation  insisted  on, 
300-301 ; may  be  reserved  in  com- 
promis,  iil07,  m349,  300 
Revision  of  declaration  of  Brussels, 
Hi 

See  Laws  and  customs  of  war  on 
land 

Revision  of  Geneva  Convention,  64; 
recommendation  concerning,  ii27, 
ii79 

Revolutions,  convention  concern- 
ing opening  of  hostilities  does  not 
apply  to,  520-521 
Revue  de  Droit  International  et  de 
legislation  comparee,  mentioned, 
30 

Reynolds,  Francisco,  General,  dele- 
gate of  Argentine  Repubhc,  ii261; 
personality,  157 

Rhine,  arbitration  by  commission 
for  navigation  of  the,  233 
Richard,  Henry,  mentioned,  261, 
683 

Rights  and  duties  of  neutrals: 
United  States  circular  of  Oct.  21, 
1904,  if  171;  report  of  American 
delegation  to  second  conference, 
ii218;  discussion  in  first  confer- 
ence, 64;  report  of  American  dele- 
gation to  first  conference,  ii27 ; 
recommendation  of  first  confer- 
ence concerning,  ii79;  instruc- 


INDEX 


877 


tions  to  American  delegation  to 
second  conference,  m195  (sec 
next  two  headings);  in  Russian 
circular  of  April  12,  1906,  m176 
Rights  and  duties  of  neutral  powers 
in  naval  war:  convention  concern- 
ing, m507-523;  discussed,  620- 
648;  report  of  American  delega- 
tion, m236-242;  consent  of  Sen- 
ate to  ratification,  M523-525n; 
convention  referred  to,  728;  reser- 
vations to  convention,  w539-541 
Rights  and  duties  of  neutral  pow- 
ers and  persons  in  case  of  war 
on  land:  convention  concerning, 
m401-415;  discussed,  541-555; 
report  of  American  delegation, 
m217-219;  consent  of  Senate  to 
ratification,  u415n;  reservations 
to  convention,  w537 
Rights  of  action  not  to  be  aboUshed, 
n205 

Rio  Conference,  date  of,  conflicted 
with  date  proposed  for  second 
conference,  96-98 
See  International  Conference  of 
American  States 
Rivers.  See  International  rivers 
Robilant,  Marius  NicoUs  de.  General, 
delegate  of  Italy  to  second  con- 
ference, m273 

Robinson,  John,  suggested  com- 
memoration of,  187 
Roell,  Jonkheer  J.  A.,  delegate  of 
the  Netherlands  to  second  con- 
ference, m277;  personaUty,  160- 
161 

Rogier,  Coimt  de  Grelle,  Belgian 
delegate  to  first  conference,  m65 
Rojetsvensky,  Admiral,  mentioned, 
267 

Rolin,  l^douard,  Siamese  delegate 
to  first  conference,  ii75;  person- 
ality, 152-154;  prominent  dele- 
gate, 150 

Roiin-Jfaequemyns’  letter  proposing 
Institute  of  International  I.iaw, 
684 

Roman  judicial  system,  develop- 
ment of,  from  arbitration,  190- 
193 

Rome,  arbitration  in,  189,  199-200 
Romilly,  Sir  Samuel:  impression  of 
Dr.  Franklin,  69  In;  mentioned, 
691 

Roosevelt,  President;  letter  to  An- 
drew Carnegie  mentioned,  430- 
431;  mentioned,  734;  message  to 
Congress  concerning  court  of  ar- 
bitral justice,  460;  concerning  in- 


ternational prize  court,  508; 
concerning  second  conference, 
9 In;  good  offices  of,  terminated 
Russo-Japanese  war,  125,  265; 
part  in  calling  second  conference, 
90-93;  response  to  resolutions  of 
Interparliamentary  Union,  90- 
91;  telegram  to,  at  close  of  second 
conference,  111-112,  141-142 

Root,  Elihu,  Secretary  of  State: 
judgment  as  to  work  of  second 
conference,  143;  instructions  to 
American  delegation  to  Rio  Con- 
ference concerning  forcible  col- 
lection of  contract  debts,  398; 
mentioned,  663;  speech  at  Buenos 
Aires,  August  17,  1906,  concern- 
ing contract  debts,  421-422; 
speech  on  laying  corner-stone  of 
building  of  Bureau  of  American 
Republics,  253,  679;  statement 
concerning  work  of  the  confer- 
ences, 739 

Rosado,  Lieut.-Colonel  Tomaz  An- 
tonio Garcia,  delegate  of  Portu- 
gal to  second  conference,  w279 

Rose,  Uriah  M.,  delegate  of  United 
States  to  second  conference, 
m259;  language  used  at  confer- 
ence, 123;  member  of  correspon- 
dence committee,  n204;  person- 
ality, 156-157 

Ross,  In  re,  cited,  ff236 

Roth,  Arnold,  Dr.,  delegate  of 
Switzerland  to  first  conference, 
ii75 

Rouerie,  Marquis  de  la,  Washing- 
ton’s letter  to,  of  Oct.  7.  1785, 
quoted,  677 

Roumania:  attitude  toward  com- 
pulsory arbitration,  342;  atti- 
tude toward  throwing  projectiles 
from  balloons,  651;  delegates  to 
first  conference,  m73;  delegates 
to  second  conference,  m279;  per- 
sonality, 161;  opposition  to  com- 
pulsory arbitration  at  first  con- 
ference, 309-310;  opposition  to 
international  commissions  of  in- 
quiry, 77-78;  reasons  for  absten- 
tion of,  from  contract  debt  con- 
vention, 413;  reply  to  United 
States  circular  of  Oct.  21,  1904, 
92;  of  Dec.  16,  1904,  if  173;  reser- 
vation concerning  obligatory  ar- 
bitration, M165-167,  309-310; 
reservation  concerning  inter- 
national commissions  of  inquiry, 
307 ; reservation  to  convention 


878 


INDEX 


of  1907  for  peaceful  settlement  of 
international  disputes,  ii533 
Rousseau,  Jean  Jacques,  project  of, 
quoted,  210;  mentioned,  26,  749 
Rules  of  procedure.  See  Procedure 
Rules  of  the  Treaty  of  Washington 
referred  to,  626,  631 
Ruses  of  war  allowed,  ii\27,  if389 
Russell,  Sir  John,  cited,  402 
Russia:  arbitration  between  Austria, 
France,  Great  Britain,  Prussia 
and,  under  treaty  of  1815,  233; 
attitude  toward  contract  debts, 
413;  attitude  toward  transforma- 
tion merchant  ships,  576;  atti- 
tude toward  throwing  projectiles 
from  balloons,  652;  calling  of 
conference  by,  33,  39n,  41n,  93- 
95;  circular  of  Jan.  11,  1899,  ii'i- 
5,  discussed,  44-47;  circular  of 
April  12,  1906,  wl75-176,  102; 
circular  of  April  12,  1906,  con- 
cerning adhesion  of  states  not 
represented  at  first  conference, 
m178-179;  delegates  to  first  con- 
ference, u73,  to  second  confer- 
ence, ff281 ; draft  article  concern- 
ing functions  of  international 
commissions  of  inquiry,  306; 
draft  code  of  arbitration  proposed 
in  1899,  789;  elements  for  elabor- 
ation of  convention  presented  in 
1899,  781;  emperor  of,  and  the 
Persian  minister,  Mirza  Riza, 
Khan,  humorous  incident,  178; 
judges  of  international  prize  court 
sit  permanently,  m481;  memo- 
randum of  Sept.  13,  1905,  93n, 
of  Nov.  12,  1906,  104-105;  note 
of  April  12,  1906,  99-100,  of 
March  22  and  April  4,  1907,  105- 
106;  personalities  of  delegates  to 
first  conference,  148-149,  to  sec- 
ond conference,  161-162;  pro- 
gram of  second  conference,  m176- 
177,  did  not  include  limitation  of 
armaments,  663;  project  for  limi- 
tation of  armaments  and  budgets, 
55,  56,  656;  project  for  compul- 
sory arbitration,  321,  323-327, 
803;  project  for  court  of  arbitral 
justice,  430,  437-438;  project  for 
destruction  of  neutral  prizes, 
727-728;  project  for  interna- 
tional arbitration,  of  1899,  803; 
project  for  international  commis- 
sion of  inquiry,  307,  788;  project 
for  permanent  court  of  arbitra- 
tion, 280,  794;  project  for  revi- 
sion of  arbitral  award,  81;  reply 


to  United  States  circular  of  Oct. 
21,  1904,  92,  of  Dec.  16,  1904, 
ul73;  represented  Montenegro, 
149;  rescript  of  August,  1898, 
quoted,  iil-2,  discussed,  39-44, 
impression  produced  by  pubhca- 
tion  of,  4271;  reservation  to  pro- 
gram of  second  conference,  105- 
106;  reservation  to  convention 
respecting  laws  and  customs  of 
war  on  land,  m537;  reservation 
to  convention  respecting  status 
of  enemy  merchant  ships  on  out- 
break of  hostilities,  ii537 ; rule 
concerning  enemy  merchant  ships 
at  outbreak  of  Crimean  war,  559- 
560,  at  outbreak  of  war  with 
Japan,  563 

Russo-Japanese  war  referred  to, 
88,  93,  125,  265,  734 

Ryeshiteln,  Case  of  the,  referred  to, 
625 

Saenz  Peiia,  Roque,  delegate  of 
Argentine  Republic,  m259;  per- 
sonality, 157;  supported  court  of 
arbitral  justice,  i34-AZ5 

Sailors  excluded  from  convention 
for  adaptation  to  naval  warfare 
of  principles  of  Geneva  Conven- 
tion, 600 

St.  Louis  World’s  Fair,  mentioned, 
684 

St.  Petersburg,  Declaration  of: 
effect  on  development  of  inter- 
national conference,  21-22;  pro- 
hibited use  of  explosive  projec- 
tiles, 21-22 

See  Conference  of.  Declaration  of 

St.  Pierre,  perpetual  peace  of,  dis- 
cussed, 742-744,  749;  mentioned 
26 

Sakamoto,  Captain,  Japanese  dele- 
gate to  first  conference,  iiQ9 

Sakdi,  Phya  Visuddha  Suriya,  Sia- 
mese delegate  to  first  conference, 
u75 

Sale  of  arms  and  ammunition  by 
United  States  to  France  during 
war  with  Prussia,  628 

Salisbury,  Lord,  mentioned,  402, 
409 

Salvador,  delegation  to  second  con- 
ference, m281;  reservation  to 
contract  debt  convention,  m535; 
to  international  prize  court  con- 
vention, ii539 

Samad  Khan  Momtas-es-Saltaneh, 
Persian  delegate  to  second  con- 


INDEX 


879 


ferenee,  m279;  supported  court 
of  arbitral  justice,  434-^35 
San  Guiliano,  Marquis,  mentioned, 
90 

Sanguily,  Manuel,  Cuban  delegate 
to  second  conference,  m267 
Santos  Lisboa,  Eduardo  F.  S.  dos, 
Brazilian  delegate  to  second  con- 
ference, m263;  personality,  157 
Sapountzakis,  Colonel  C.,  delegate 
of  Greece  to  second  conference, 
m271 

Sato,  Aimaro,  Japanese  delegate  to 
second  conference,  m273 
Satow,  Sir  Ernest,  delegate  of  Great 
Britain  to  second  conference, 
m269|  mentioned,  727,  728;  per- 
sonality, 159;  speech  concerning 
mines,  585 

Savomin-Lohman : arbitrator  in 
Mascat  controversy,  317;  Judge 
in  Pious  fund  case,  313 
Scheme,  Captain,  Russian  delegate 
to  first  conference,  w73;  person- 
ality, 148-149;  prominent  dele- 
gate, 150;  submitted  project  con- 
cerning armaments  and  budgets, 
55 

Scheller,  Rear-Admiral  C.  F.,  dele- 
gate of  Denmark  to  second  con- 
ference, m267 
Schiller,  mentioned,  681 
Schnack,  M.  J.  G.  F.  von,  delegate 
of  Denmark  to  first  conference, 
m65 

Schwarzhoff,  Colonel  de  Gross  de, 
German  delegate  to  first  confer- 
ence, m63;  mentioned,  650;  per- 
sonality, 146,  152-154;  promi- 
nent delegate,  150;  speech  on 
armaments,  657 

Science,  buildings  devoted  to:  bom- 
bardment of,  m129,  m389,  m441, 
536,  597,  592n;  seizure  of,  for- 
bidden, m139,  m401,  539 
Scientific  missions,  ships  engaged 
in,  n227,  n467,  m513,  618,  636- 
637 

Scott,  James  Brown,  delegate  of 
United  States  to  second  confer- 
ence, m259 

Scott,  Sir  William,  mentioned,  469n; 
quoted,  624 

Seat  of  conference,  ii5,  m172,  47; 
of  court  of  arbitral  justice,  m297  ; 
of  international  commission  of 
inquiry,  m315,  tf319,  270;  of  per- 
manent court  of  arbitration,  ii95, 
im,  m339,  294 


Second  commission  of  first  confer- 
ence, work  of,  62-66;  of  second 
conference,  131-133 

Secrecy  of  deliberations  of  first  con- 
ference, 53-54;  of  second  con- 
ference, m204 

Secret  suggestions  or  arrangements 
not  permitted  at  first  conference, 
41w 

Secretaries,  distinction  between  and 
other  delegates,  113 

Secretaries  to  delegations  to  first 
conference,  151;  security  for  costs 
before  international  prize  court  in 
appeal  brought  by  individual, 
m495 

Segrave,  Commander  J.  R.,  dele- 
gate of  Great  Britain  to  second 
conference,  m271 

Selection  of  arbitrators  and  umpire 
for  permanent  court  of  arbitra- 
tion, m93-95,  m99,  n331,  m337, 
283,  293 

Selection  of  arbitrators  and  umpire 
for  summary  procedure,  m349, 
302 

Selection  of  commissioners  for  inter- 
national commission  of  inquiry, 
m87,  w317,  273 

Selection  of  powers  to  be  invited 
to  first  conference,  47 

S61ir,  Coimt  de,  Portuguese  dele- 
gate to  first  and  second  confer- 
ences, m71,  u279 

Semmes,  Admiral,  mentioned,  610, 
726 

Senate,  United  States,  submission 
of  compromis  to,  288-290,  335— 
336,  350-351 

Sentence  of  international  prize  court, 
m496 

Sentiment  in  favor  of  arbitration 
and  judicial  settlement  of  inter- 
national disputes  a factor  that 
makes  for  peace,  694 

Serrallo,  Count  de,  delegate  of 
Spain  to  first  conference,  iiQ5 

Servia:  amendment  concerning  offer 
of  good  offices  and  mediation  by 
strangers,  305;  delegation  to  first 
conference,  m73;  delegation  to 
second  conference,  ff281;  oppo- 
sition to  international  commis- 
sions of  inquiry,  77-78;  propo- 
sition of  compiilsory  arbitration 
presented  to  second  conference, 
336;  reservation  concerning  good 
offices  and  mediation,  m167,  305; 
reservation  concerning  inter- 
national commissions  of  inquiry, 


880 


INDEX 


307;  supported  court  of  arbitral 
justice,  434—135 

Services  of  neutral  persons,  551, 
553;  Germany’s  proposed  addi- 
tional articles  concerning,  826 

Sessions  of  court  of  arbitral  justice, 
m299,  449 

Seward,  William  H.,  mentioned, 
238 

Shakespeare,  mentioned,  681 

Shimamura,  Hayao,  Rear-Admiral, 
Japanese  delegate  to  second  con- 
ference, m273 

Shipwrecked,  in  Russian  circular 
of  Jan.  11,  1899,  iiA;  instructions 
to  American  delegation  to  first 
conference,  fi8,  report  of  Ameri- 
can delegation  to  first  conference, 
m20-21  ; report  of  Captain  Mahan, 
m39— 14;  paper  read  by  Captain 
Mahan  concerning,  M44r-45 
See  Hospital  Ships,  sick  and 
wounded 

Shiras,  Justice,  opinion  in  The 
Pedro  referred  to,  566 

Siam : delegation  to  first  conference, 
m73;  delegation  to  second  con- 
ference, m283;  invited  to  first 
conference,  47;  reservation  to 
convention  concerning  submarine 
mines,  u537;  reservation  to  con- 
vention concerning  rights  and 
duties  of  neutral  powers  in  naval 
war,  m541;  reservation  to  inter- 
national prize  court  convention, 
m539 

Siben,  Lieut  .-Colonel,  French  dele- 
gate to  second  conference,  m269 

Sick  and  wounded:  additional  arti- 
cles of  Geneva  Convention  ex- 
tended to,  in  naval  war,  600; 
after  engagement,  u457,  612; 
governed  by  Geneva  Convention, 
ul27,  ii387,  535;  information 
concemiag,  to  be  sent  their 
governments,  m457,  612;  ill- 

treatment  of,  to  be  punished, 
ii459,  613;  inhabitants  caring  for, 
599;  in  occupied  territory,  600; 
interned  in  neutral  territory, 
m51,  m141,  u407,  549;  landed  at 
neutral  port,  m149,  w455,  611; 
neutral  merchant  ships  may  be 
appealed  to  to  take  on  board, 
ivi53,  608;  neutral  vessels  carry- 
ing, m39-44,  m147  ; passage 

through  neutral  territory,  m141, 
m407,  548-549;  prisoners  of  war, 
m149,  n455,  610-611;  report  of 
Captain  Crozier,  m49;  sailors  or 


soldiers,  m149,  if455,  609;  taken 
on  board  neutral  vessel  not  to 
take  part  in  war,  m455,  610;  to 
be  cared  for  irrespective  of 
nationality,  599;  to  be  sent  home 
after  cure,  601 
Sick  wards,  m451,  607,  609 
Siegel,  Rear-Admiral,  German  dele- 
gate to  first  and  second  confer- 
ences, u63,  m257;  personality, 
146,  148,  155-156;  prominent 
delegate,  150 

Sieges  as  means  of  injuring  enemy, 
m49,  m127-129,  m215-216,  w387- 
391 

Sieges,  number  of  killed  in,  523n 
Signatures  to  conventions  of  first 
conference,  iil61-163;  of  second 
conference,  m529-531 
Size  of  delegations,  149 
Smolensk,  The,  referred  to,  575 
Social  side  of  the  conference,  180- 
187 

Solemn  Review  of  the  Customs 
War,  mentioned,  682 
Solferino,  battle  of,  mentioned,  19, 
732 

South  African  War,  referred  to, 
88,  734 

South  Carolina  v.  Georgia,  referred 
to,  463 

Souvenir  de  Solferino,  mentioned, 
19 

Several,  Marquis  de,  delegate  of 
Portugal  to  second  conference, 
w279;  personality,  161;  presented 
compulsory  arbitration  project, 
337;  supported  court  of  arbitral 
justice,  434-435 

Sovereign:  arbitration  by,  219,  223; 
arbitral  procedure  when,  is  arbi- 
trator, m99,  m339 
Spain:  arbitration  with  United 
States  under  treaty  of  1795,  229, 
xmder  treaty  of  1802,  229;  atti- 
tude toward  contract  debts,  413, 
toward  limitation  of  armaments, 
666 ; delegation  to  first  conference, 
m65,  to  second  conference,  m267; 
reply  to  United  States  circular  of 
Oct.  21, 1904, 92,  of  Dec.  16, 1904, 
ill 73;  reservation  to  program  of 
second  conference,  m182,  105- 
106;  rule  concerning  enemy  mer- 
chant ships  at  outbreak  of  war 
with  United  States,  561-563 
Sparta,  mentioned,  681 
Special  arbitration,  use  of  inter- 
national bureau  for,  w333 


INDEX 


881 


Special  agreement  in  international 
commission  of  inquiry,  n87,  266, 
268 

See  Compromis 

Special  delegation  of  court  of  arbi- 
tral justice,  m293,  448 
Special  mediation,  m21,  m85,  if313, 
262;  devised  by  Holls,  262-264; 
President  McKinley’s  fears  con- 
cerning, 264n;  report  of  Ameri- 
can delegation  to  first  conference, 
m21;  report  of  Messrs.  White, 
Low  and  Holls,  m59 
Speed,  Attorney-General,  quoted, 
470 

Sperry,  Charles  S.,  Rear-Admiral, 
delegate  of  United  States  to  sec- 
ond conference,  n259;  mentioned, 
716;  personality,  156-157;  objec- 
tion to  article  concerning  observ- 
ance of  laws  and  customs  of  war 
by  merchant  ship  converted  into 
warship,  573-574 

Spies,  w50,  m129-131,  m391,  537, 
638 

Staal,  Baron  de,  delegate  of  Monte- 
negro to  first  conference,  w71 
Staal,  Baron  de,  Russian  delegate 
to  first  conference,  m73;  men- 
tioned, 33,  74,  734;  personality, 
148-149,  151-164;  president  of 
first  conference,  49;  speech  at 
second  session,  49-52;  speech  at 
close  of  first  conference,  85-87; 
statement  concerning  armaments 
and  budgets,  54-55 
Stair,  Lord,  quoted,  228 
Stancioff,  Dimitri  I.,  Dr.,  delegate 
of  Bulgaria  to  first  conference, 
m77 

Standing  army  in  United  States, 
Dr.  Franklin’s  observation  con- 
cerning, 692 

Stanhope,  Philip,  mentioned,  90 
Stated  international  conference:  in- 
structions to  American  delega- 
tion to  second  conference,  it  184; 
referred  to,  735;  mentioned,  738; 
petition  of  American  Peace  So- 
ciety, 757,  referred  to,  89 
States  invited  to  second  conference, 
list  of,  iil79-180 

Status  of  enemy  merchant  ships  at 
outbreak  of  hostilities.  See  Enemy 
merchant  ships  at  outbreak  of 
hostilities 

Stead,  William  T.:  Courrier  de  la 
Conference  de  la  Paix,  mentioned, 
122,  172-173;  mentioned,  122; 
work  at  the  conferences,  174-175 


Stengel,  Baron  de,  German  delegate 
to  first  conference,  ii63;  person- 
ality, 146,  148;  represented  Ba- 
varia, 146n 

Stewart,  Commodore,  case  of,  re- 
ferred to,  624 

Stockton,  Charles  H.,  Admiral, 
mentioned,  579 

Stores  and  supplies  in  occupied  ter- 
ritory, m139,  m399 
Stowell,  Lord:  decision  in  The  At- 
lanta, cited,  678;  in  The  Boedes 
Lust,  quoted,  558;  in  Fox  and 
Others,  quoted,  470;  in  The  Maria, 
quoted,  468;  in  The  Recovery, 
quoted,  469;  in  The  Walsingham 
Packet,  cited,  471;  mentioned, 
707,  725 

Streit,  Georges,  delegate  of  Greece 
to  second  conference,  m271 
Sturdaa,  Alexandre,  Captain,  dele- 
gate of  Roumania  to  second  con- 
ference, m279 

Sturge,  Joseph,  mentioned,  261 
Subcommissions,  organization  of 
commissions  into,  11 
Subjects  submitted  to  arbitration, 
classification  of,  247 
Subjects  not  in  program  of  con- 
ference, presentation  of,  51,  63, 
65,  120-122,  m24-25 
Submarine  cables.  See  Cables 
Submarine  mines:  discussion  in 
first  conference,  69-61 
See  Mines 

Submarine  torpedo-boats:  in  Rus- 
sian circular  of  January  11,  1899, 
u4;  instructions  to  American  dele- 
gation to  first  conference,  m7-8; 
report  of  American  delegation  to 
first  conference,  m19-20;  report 
of  Captain  Mahan,  m36-39 
Substitution  of  delegates,  120 
Successors  in  interest  before  inter- 
national prize  court,  m477,  488 
Suggested  composition  of  court  of 
arbitral  justice,  813,  825 
Summary  procedure,  m349-351, 
302-303;  initiated  by  French  dele- 
gation, 302;  report  of  American 
delegation  to  second  conference, 
m212 

Sumner,  Charles:  “Addresses  on 
War,”  cited,  31,  32;  mentioned, 
741 

Supplementary  evidence  before  in- 
ternational prize  court,  m491, 
500 

Supreme  Court  of  the  United  States, 


882 


INDEX 


submission  of  judgments  of,  to  in- 
ternational court,  475^84,  499 
Surie,  H.  G.,  Lieutenant,  delegate 
of  the  Netherlands  to  second 
conference,  m277 

Suspension  of  consideration  of  block- 
ade 725 

Sutlers,  m123,  m383,  533 
Suttner,  Baroness  von,  present  at 
first  and  second  conference,  172 
Swabey,  Maurice,  mentioned,  218 
Sweden:  delegation  to  first  confer- 
ence, m75;  to  second  conference, 
ii283;  personality  of  delegates  to 
second  conference,  162-163; 
favored  British  contraband  prop- 
osition, 712;  presented  compul- 
sory arbitration  project,  337; 
reply  to  United  States  circular  of 
Oct.  21,  1904,  92,  of  Dec.  16, 
1904,  m173;  Swiss  Cantons  of 
Tessin  and  Uri,  arbitration  be- 
tween, 233 

Switzerland:  attitude  toward  com- 
pulsory arbitration,  342;  delega- 
tion to  first  conference,  ii75,  to 
second  conference,  fz283;  person- 
ality of  delegates  to  second  con- 
ference 162-163;  favored  British 
contraband  proposition,  712;  rea- 
son for  abstention  from  contract 
debt  convention,  414;  reply  to 
United  States  circular  of  Oct.  21, 
1904,  92;  reservation  to  conven- 
tion for  peaceful  settlement  of  in- 
ternational disputes,  m533;  reser- 
vation to  recommendation  con- 
cerning court  of  arbitral  justice, 
w541 

Symboleography  of  William  West 
concerning  Compromise  and  Ar- 
bitraments, extract  from,  776 
System  of  arbitration:  convention 
of  1899,  m89-91;  convention  of 
1907,  M325-327;  discussed,  274- 
286 

Systems  of  appointing  judges  of 
court  of  arbitral  justice,  457-459 
Szilas  et  Pilis,  Jules  Szilassy,  dele- 
gate of  Austria-Hungary  to  sec- 
ond conference,  fi261 

Table  of  signatures:  to  conventions 
of  1899,  wl61-163;  to  conven- 
tions of  1907,  M529-531 
Table  showing  participation  of  each 
state  in  arbitration  from  1794  to 
1900,  226 

Tadema,  A.  P.,  Captain,  delegate  of 
the  Netherlands  to  first  con- 
ference, m71;  personality,  1.50 


Talleyrand,  mentioned,  14 
Taxes,  dues  and  tolls  in  occupied 
territory,  m137,  ii397 
Tchang  Tching  Tong,  Chinese  dele- 
gate to  second  conference,  m265 
Tchao-Hi-Tchiou,  Chinese  delegate 
to  second  conference,  m265 
Tcharykow,  M.,  delegate  of  Monte- 
negro to  second  conference,  ii275 
Tcharykow,  M.,  Russian  delegate  to 
second  conference,  m281;  extract 
from  speech  concerning  throw- 
ing of  projectiles  from  balloons, 
652;  personality,  161-162 
Technical  and  scientific  delegates: 
appointed  to  first  conference,  150; 
appointed  to  second  conference, 
155-163;  distinction  between,  and 
other  delegates,  113 
Tejera,  ApoUnar,  delegate  of  the 
Dominican  Republic,  m267 
Telegram  to  President  Roosevelt  at 
close  of  second  conference,  111- 
112,  141-142 

Telegrams  exchanged:  at  opening  of 
second  conference,  107-108;  be- 
tween Ambassador  Hitchcock  and 
State  Department  concerning  first 
conference,  41-42n 
Telegraphs  and  telephones:  in  occu- 
pied territory,  m139,  m399,  w216; 
neutral  power  not  obliged  to  for- 
bid use  of,  m405,  545 
Tenure  of  judges  of  court  of  arbitral 
justice,  ii293,  445;  of  interna- 
tional prize  court,  m479;  of  per- 
manent court  of  arbitration, 
m329,  281 

Territorial  waters.  See  Neutral 
waters 

Tessin  and  Uri,  Swiss  Cantons,  arbi- 
tration between,  233 
Tetuan,  Duke  de,  Spanish  delegate 
to  first  conference,  m65 
Thaulow,  J.  J.,  Major-General,  dele- 
gate of  Norway  to  first  conference, 
ii75 

Thea,  sinking  of  The,  in  the  Russo- 
Japanese  war,  mentioned,  725- 
726 

Third  commission  of  first  confer- 
ence, work  of,  66-87;  of  second 
conference,  133-134 
Third  peace  conference:  recommen- 
dation for,  m289-291,  discussed, 
136,  731-751;  report  of  American 
delegation,  m249-251;  prepara- 
tory committee  for,  735;  date  of, 
735 


INDEX 


883 


Thornton,  Sir  Edward,  mentioned, 
244 

Throwing  projectiles  from  balloons. 
See  Balloons 

Tinge,  W.  S.  Y.,  Colonel,  delegate  of 
China  to  second  conference,  m265 
Tomb  of  Grotius,  wreath  placed 
upon,  185-186;  remarks  of  A.  D. 
'V^ite,  740 

Tomielli,  Crusati  di  Vergano,  Count 
Joseph,  delegate  of  Italy  to  sec- 
ond conference,  n273;  mentioned, 
133;  president  third  commission, 
115,  m203;  proposition  concern- 
ing compulsory  arbitration,  343; 
personality,  159-160;  speech  on 
compulsory  arbitration,  379—380 
Torpedo-boats,  submarine:  in  Rus- 
sian circular  January  11,  1899, 
m4;  in  Russian  circular  April  12, 
1906,  ril76;  instructions  to  Ameri- 
can delegation  to  first  conference, 
n7-8;  discussion  in  first  confer- 
ence, 60;  in  Russian  circular  of 
April  12,  1906,  wl76;  report  of 
American  delegation  to  first 
conference,  m19-20;  report  of 
Captain  Mahan,  -1136-39 
Torpedoes.  See  Mines 
Trade  in  contraband,  628-630,  608 
Trade  with  blockaded  port,  719n 
Transformation  of  merchant  ships 
into  warships:  convention  relative 
to,  11423-429;  discussed,  135, 
568-576;  in  Russian  circular  of 
Apr.  12,  1906,  11176;  report  of 
American  delegation,  11221-223; 
convention  not  signed  by  Ameri- 
can delegation  and  not  submitted 
to  Senate  for  ratification,  1142971, 
574;  reservation  of  Turkey  to 
convention,  11537 

Transportation,  means  of,  in  occu- 
pied territory,  11139,  11216, 11339 
Treaties,  interpretation  of,  to  be 
arbitrated,  11327,  275-276;  reser- 
vation of  Roumania,  11165-167, 
309-310 

Treaties  of  arbitration  referred  to: 
between  Austria,  France,  Great 
Britain,  Prussia  and  Russia  of 
1815,  233;  between  England  and 
France  of  1655,  214;  between 
England  and  Holland  of  1654, 
212-213;  between  England  and 
Portugal  of  1654,  214;  between 
France  and  Great  Britain  of  1815, 
233;  of  1842,  234;  of  1903,  328- 
330;  between  France  and  Holland 
of  1813,  233;  between  United 


States  and  France  of  1803,  230 ; 
of  1880,243-244;  of  1908,  251; 
Great  Britain  of  1794,  211-212, 
30071;  of  1814,  231;  of  1818,  231- 
232;  of  1853,  236;  of  1871,  224- 
22577,  240-243,  475,  477-A79,  498, 
626,  631-632;  of  1892,  2237i; 
Mexico  of  1848,  251;  of  1868, 
243-244;  Spain  of  1795,  229;  of 
1802,  229 

Treaties  of  arbitration:  concluded 
in  17th  and  18th  centuries,  205; 
copies  of,  to  be  communicated  to 
international  bureau,  u91,  n329, 
281;  since  first  Hague  conference, 
125^126,  812 

Treaties  of  commerce  and  naviga- 
toin  in  Portuguese  project  of  com- 
pulsory arbitration,  349 
Treaties  of  compulsory  arbitration, 
new,  n91,  277,  u327,  279,  326- 
328 

Treaties  of  Utrecht,  effect  of,  in 
development  of  international  con- 
ference, 13-14,  731 
Treaties  of  Westphalia,  effect  of,  in 
development  of  international  con- 
ference, 9-13,  731;  mentioned,  673 
Treaty  between  Argentine  and  Chile 
of  1902  concerning  disarmament, 
mentioned,  666 

Treaty,  general,  of  arbitration, 
ril89-190,  333 

Treaty-making  power  of  the  United 
States,  482 

Triana,  Santiago  Perez,  delegate  of 
Salvador,  m281 

Triana,  Santiago  Perez,  delegate  of 
Colombia,  77265 

Tribimal  of  arbitration,  ideal,  223 
Trompowsky  Leitao  de  Almeida, 
Col.  Roberto,  delegate  of  Brazil, 
77263;  personality,  157 
Troops  not  to  be  moved  across  neu- 
tral territory,  77403,  544 
TrumbuU,  Colonel,  mentioned,  218 
Trumpeter  accompanying  envoy 
with  flag  of  truce,  77131,  77393 
Tsien-Sun,  Chinese  delegate  to  sec- 
ond conference,  77265 
Tsudzuki,  Keiroku,  Japanese  dele- 
gate to  second  conference,  77273; 
personality,  160 

Turkey:  delegates  to  first  confer- 
ence, n75;  to  second  conference, 
77283;  language  used  by  delegates, 
123;  reservation  to  convention  of 
1899  for  peaceful  settlement  of 
international  disputes,  77167 ; res- 
ervation to  convention  of  1907 


884 


INDEX 


for  peaceful  settlement  of  inter- 
national disputes,  m533;  reser- 
vation to  convention  concerning 
laws  and  customs  of  war  on  land, 
m537;  reservation  to  conven- 
tion relative  to  conversion  of 
merchant  ships  into  warships, 
m537;  reservation  to  convention 
relative  to  submarine  mines, 
m537;  reservation  to  convention 
of  1907  for  adaptation  to  naval 
war  of  principles  of  Geneva  Con- 
vention, m539  ; reservation  to  in- 
ternational prize  court  conven- 
tion, ii539;  reservation  to  conven- 
tion concerning  rights  and  duties 
of  neutral  powers  in  naval  war, 
m541;  rule  concerning  enemy 
merchant  ships  at  outbreak  of 
Crimean  war,  559-560 

Turkhan  Pasha,  Turkish  delegate 
to  first  and  second  conferences, 
m75,  u283 

Turks,  Yoimg,  and  Dr.  White, 
humorous  incident,  179 

Twenty-four  hour  stay  of  belligerent 
ships  in  neutral  ports,  m239,  m513, 
633-636 

Twiss,  Sir  Travers,  quoted,  15-16 

Udom,  Mom  Chatidej,  Major-Gen- 
eral, delegate  of  Siam  to  second 
conference,  ii283 

Umpire:  impartiality  of,  219,  221; 
selection  of,  m99,  m331,  m337- 
339,  m349,  283,  293-294,  302; 
should  be  appointed  at  beginning 
of  arbitration,  221-222 

Unanchored  mines,  m429-431,  580- 
581.  See  Mines 

Undefended  ports,  towns,  etc..  See 
Bombardment  of 

Unfinished  business  of  second  con- 
ference, 699-730 

Uniform  of  enemy,  improper  use  of, 
forbidden,  nl27,  m387-389,  535 

United  States:  agreement  with 
Great  Britain  concerning  naval 
force  on  Great  Lakes,  670n;  arbi- 
trations with  France  under  treaty 
of  1803,  230;  xmder  treaty  of 
1880,  243-244;  under  treaty  of 
1908,  251;  with  Great  Britain 
under  treaty  of  1794,  211-212, 
300n,  under  treaty  of  1814,  231, 
imder  treaty  of  1818,  231-232, 
imder  treaty  of  1853,  236,  under 
treaty  of  1871,  224— 225n,  240- 
243,  475,  477-479,  498,  626,  631- 
632,  imder  treaty  of  1892,  223n; 


with  Mexico  under  treaty  of 
1848,  251,  under  treaty  of  1868, 
243-244;  with  Spain  under  treaty 
of  1795,  299;  under  treaty 

of  1802,  229;  armaments — reser- 
vation to  program  of  second  con- 
ference concerning,  nl82,  102- 
106,  186,  189;  blockade,  amend- 
ment concerning,  724;  circular  of 
October  21,  1904,  m168-172,  91, 
101,  709,  replies  to,  92;  circular 
of  Dec.  16,  1904,  m172,  92-93, 
101, replies  to,  m173;  compulsory 
arbitration — project  at  second 
conference,  33^336,  348-350, 

refused  to  accept  de  Martens’  con- 
ciliatory project  concerning,  376; 
contract  debts — proposition  pre- 
sented to  second  conference,  129, 
reservation  to  program  of  second 
conference  concerning,  102-106; 
controversy  with  Great  Britain 
over  cases  arising  out  of  Civil 
War,  626,  631;  court  of  arbitral 
justice — Germany  and  Great 
Britain  supported  American  proj- 
ect for,  129,  project  substituted 
by  project  of  Germany,  Great 
Britain  and  United  States,  437, 
system  of  appointing  judges  for, 
459;  delegates  to  first  conference, 
m65;  delegates  to  second  con- 
ference, m200-201,  ii259,  per- 
sonalities of,  155-156;  destruc- 
tion of  neutral  prizes — proposi- 
tion concerning,  728,  attitude  to- 
ward, 729;  entangling  alliances, 
reservation  concerning,  m165, 
m2  10;  international  prize  court — 
American  forerunner  of,  509-511, 
judges  of  sit  permanently,  ff481, 
favored  court  of  appellate  juris- 
diction, 475,  submission  of  cases 
from  district  court,  502,  sup- 
ported court  in  first  commission, 
131;  invitation  to  second  con- 
ference received  and  accepted, 
106;  memorandum  of  Oct,  12, 
1905,  94-95;  note — of  January, 
1903,  to  Dr.  Drago,  397;  of  Mar. 
22, 1906,  to  Third  International 
Conference  of  American  States, 
762,  of  April  6,  1906,  98-99,  102- 

104,  of  April  19,  1906,  100,  of 
June  7,  1906, 11186,  663,  of  March 
5,  1907,  763,  of  March  26,  1907, 

105,  of  May  11,  1907,  769;  open- 
ing hostilities,  convention  con- 
cerning does  not  change  American 
practice,  522;  permanent  court 


INDEX 


885 


of  arbitration — instructions  to 
delegation  to  first  conference, 
ii9-16,  plan  for,  published  pre- 
vious to  distribution  in  conference 
54^55,  project  for,  280,  of  1899, 
795,  of  1907,  821;  American  dele- 
gation’s influence  on  Germany’s 
position  toward,  75;  policy  of, 
toward  arbitration,  246;  prize 
court  in  Articles  of  Confederation, 
510;  prize  court  established  by 
Constitution,  511;  proclamation 
blockading  ports  in  Civil  War 
mentioned,  522n;  program  of 
second  conference — attitude  con- 
cerning, 101-102,  reservations  to, 
m182,  102-106;  revision  of  arbi- 
tral award — proposal  at  first  con- 
ference concerning,  81,  delegation 
insisted  on,  300-301;  rule  con- 
cerning enemy  merchant  ships 
at  outbreak  of  war  with  Spain, 
561-563,  565;  reservation  to  con- 
vention of  1899  concerning  peace- 
ful settlement  of  international 
disputes,  u533;  reservation  of 
delegation  to  convention  con- 
cerning rights  and  duties  of  neu- 
tral powers  in  naval  war,  w241; 
suggested  that  United  States 
would  be  first  to  go  to  war  after 
first  conference,  88;  unanchored 
submarine  mines,  attitude  toward 
580-581;  sale  to  France  of  arms 
and  ammunition  during  war  with 
Prussia,  628;  transformation  of 
merchant  vessels  into  warships, 
attitude  toward,  575 
Universal  expositions  at  Paris  in 
1878  and  1889,  mentioned,  684 
Unoccupied  territory,  populations 
of.  Mil 7,  m2  14 

Unorganized  inhabitants  of  invaded 
territory,  ii377,  530-531 
Unperfected  mines,  m433,  584 
Uri  and  Tessin,  Swiss  Cantons,  arbi- 
tration between,  233 
Uruguay:  delegation  to  second  con- 
ference, m285;  represented  at 
second  conference,  mISOw;  pre- 
sented project  for  court  of  arbi- 
tral justice,  437;  reservation  to 
convention  concerning  contract 
debts,  m535;  reservation  to  inter- 
national prize  court  convention, 
m539;  supported  court  of  arbitral 
justice,  434-435 
Utrecht,  See  Treaties  of 
Uyehara,  Colonel,  Japanese  dele- 
gate to  first  conference,  m69 


Vacancies:  in  arbitral  tribunal,  m99, 
m339,  293;  in  court  of  arbitral 
justice,  m293,  445;  in  interna- 
tional commission  of  inquiry, 
m317  ; in  international  prize  court, 
m479  ; in  permanent  court  of  arbi- 
tration, m329,  281 
Valparaiso,  bombardment  of,  by 
Spanish  fleet,  mentioned,  589 
Vargas,  General  M.,  delegate  of 
Colombia,  m265 

Vasconcellos  d’Ornellas,  delegate  of 
Portugal  to  first  conference,  m71 
Vedel,  M.  A.,  delegate  of  Denmark 
to  second  conference,  ii267 
Veljkovitch,  Dr.  Voislave,  delegate 
of  Servia  to  first  conference,  m73; 
amendment  concerning  offer  of 
good  offices  and  mediation  by 
strangers  presented  by,  305; 
prominent  delegate,  150 
Venezuela:  attitude  toward  collec- 
tion of  contract  debts,  412 ; bound- 
ary dispute  with  Great  Britain 
settled  through  good  offices  of 
United  States,  246;  cases  at  The 
Hague  referred  to,  315-316,  391; 
blockade  of  ports  case  of  Dr. 
Drago’s  note,  393;  delegation  to 
second  conference,  m285;  repre- 
sented at  second  conference, 
Ml80n;  supported  court  of  arbi- 
tral justice,  435 

Vessels  with  rams,  construction  of, 
prohibited:  in  Russian  circular 
of  Jan.  11,  1899,  m4;  instructions 
to  American  delegation  to  first 
conference,  m7-8,  discussion  in 
first  conference,  59-61;  report  of 
American  delegation  to  first  con- 
ference, m19-20;  report  of  Cap- 
tain Mahan,  m36-39 
Vienna,  See  Congress  of 
Villa-Urrutia,  W.  R.  de,  Spanish 
delegate  to  first  and  second  con- 
ferences, m65,  m267;  mentioned, 
666 

Villers,  Count  de,  delegate  of 
Luxemburg  to  first  and  second 
conferences,  m71,  m275 
Vinaroff,  Vrban,  Major-General, 
delegate  of  Bulgaria  to  second 
conference,  m263 

Violation  of  armistices,  m133,  m135, 
m395 

Violation  of  blockade,  elements 
necessary  to  prove,  719 
Violation  of  convention  concerning 
laws  and  customs  of  war  on  land, 
m217,  m371,  528 


886 


INDEX 


Violation  of  convention  concerning 
rights  and  duties  of  neutral 
powers  in  maritime  war  to  be 
prevented,  u241,  u519,  647 
Violation  of  convention  concerning 
neutral  powers  and  persons  in 
war  on  land  to  be  prevented, 
n403-405,  544,  546 
Violations  of  neutrality,  report  of 
American  delegation,  u238 
Visits  of  delegates  at  The  Hague, 
180-181 

VcEux.  See  Recommendations 
Voluntary  arbitration,  difference 
between  compulsory  and,  276 
Volunteers,  wll7,  ii377,  528-530 
Voting  of  the  delegations,  120 
Voting  upon  amendments,  61-62, 
120 

Vrouw  Anna  Catharina,  quoted, 
624 

Walsingham  Packet,  cited,  471 
War,  dates  from  hostile  act  or 
declaration,  517;  necessity  for 
ameliorating,  523-524 
War  and  Peace,  William  Jay’s,  men- 
tioned, 211;  quoted,  250 
War  conferences.  See  Conferences 
at  termination  of  war 
War  material:  destruction  by  naval 
force,  m439,  595;  export  and 
transit  of,if238;  in  occupied  terri- 
tory, m139,  m399;  transfer  of,  to 
belligerents,  prohibited,  m238, 
zi511,  627. 

See  Munitions  of  war 
War  measures  at  peace  conferences, 
discussion  of,  522-523 
Warning  before  bombardments, 
m389,  m443,  536,  597 
Warships:  destruction  of,  by  naval 
force,  ti439,  595 ; passage  through 
territorial  waters,  m238-239, 
m511,  633;  number  of,  in  neutral 
port,  ii239,  0513,  637  {see  Bel- 
ligerent ships  in  neutral  port); 
transfer  of,  to  belligerent  pro- 
hibited, w238,  0511,  627 
Washington,  George,  letters  of:  to 
Marquis  de  Chastellux,  678;  to 
Congress  concerning  prize  court, 
509 ; to  David  Humphreys  of  July 
25,1785,  676;  to  Jefferson  of  Aug. 
31, 1788, 680;  to  Lafayette  of  1786, 
676;  of  Jan.  10, 1788, 677;  of  June 
1788,  677n;  to  Marquis  de  la 
Rouerie,  677 

Ways  in  which  work  of  conference 
may  be  set  forth,  124-125 


Weil,  Chevalier  Othon  de,  delegate 
of  Austria-Hungary  to  second 
conference,  M26i 

Wellington,  Duke  of,  reply  to 
Prince  de  Joinville,  589 
Welsersheimb,  Count  R.,  delegate  of 
Austria-Hungary  to  first  con- 
ference, 063]  mentioned,  342n; 
personality,  146 
Westphalia,  See  Treaties  of 
Westlake’s  International  Law, 
quoted,  11-12,  494-496 
Wheaton,  Henry,  History  of  the 
Law  of  Nations,  quoted,  13,  9-11 
White  V.  Bulett,  cited,  169 
White,  Andrew  D.:  delegate  of 
United  States  to  first  conference, 
m65;  autobiography  cited  and 
quoted,  48,  72,  81,  84,  85,  96, 
148,  739w;  hiunorous  incident 
with  Young  Turks,  179;  inter- 
view with  Prince  Munster  con- 
cerning permanent  court  of  arbi- 
tration, 72-76;  letter  to  Biilow 
and  Hohenlohe  concerning  Ger- 
man opposition  to  permanent 
court,  75;  mentioned,  65,  71,  77, 
699-700,  734;  personality,  147, 
152-154;  quoted,  704n;  remarks 
on  placing  wreath  on  tomb  of 
Grotius,  740;  report  on  conven- 
tion of  1899  for  peaceful  adjust- 
ment of  international  differences, 
•ii52-60 

White,  Justice,  opinion  in  The 
Pedro  referred  to,  566 
Wills  of  prisoners  of  war,  ul25, 
fi387 

Wireless  telegraph  stations  in  neu- 
tral ports  and  waters,  m509,  626- 
627 ; in  neutral  territory,  0238, 
0403-405,  544,  545 
Witnesses  before  international  com- 
mission of  inquiry,  m319-321, 
m323,  270-271,  272;  before  tri- 
bunal of  summary  procedure, 
m351,  303 

Witnesses,  service  of  notices  on: 
for  arbitral  tribunal,  0345,  297; 
for  court  of  arbitral  justice,  u303, 
455 ; for  international  commission 
of  inquiry,  fi321,  270;  for  inter- 
national prize  court,  0487 
Wives  and  families  of  delegates  at 
The  Hague  took  part  in  festivities, 
183-184 

Woolsey’sInternationalLaw, quoted, 
13n 

Worcester,  Noah,  mentioned,  682 


INDEX 


887 


“Solemn  Review  of  the  Customs 
of  War”  mentioned,  682 
Work  of  the  first  commission  of  the 
first  conference,  54-62;  of  the 
second  conference,  124-131 
Work  of  the  second  commission  of 
the  first  conference,  62-66;  of  the 
second  conference,  131-133 
Work  of  the  third  commission  of  the 
first  conference,  66-87;  of  the 
second  conference,  133-134 
Work  of  the  fourth  commission  of 
the  second  conference,  134-136 
Works  of  art.  See  Art 

Yang  Yu,  Chinese  delegate  to  first 
conference,  m65 

Yarde-Buller,  Henry,  Lieutenant- 
Colonel,  delegate  of  Great  Britain 
to  second  conference,  m271 
Yermolow,  Major-General,  Russian 
delegate  to  second  conference, 
m281 


Young  Turks,  The,  and  Dr.  White, 
humorous  incident,  179 

Zannini,  Count  A.,  delegate  of  Italy 
to  first  conference,  m69;  humor- 
ous incident  concerning  Persian 
delegate  and  Emperor  of  Russia 
related  by,  178 

Zenil,  M.,  Mexican  delegate  to  first 
conference,  m67 

Zorn,  Dr.,  German  delegate  to  first 
and  second  conferences,  n63, 
m257;  article  in  Deutsche  Revue 
concerning  German  position  con- 
cerning arbitration,  75-76,  331; 
attitude  toward  compulsory  arbi- 
tration, 324,  325;  mentioned,  71, 
73,  75,  443 ; personality,  146, 148, 
151-154;  prominent  delegate,  150; 
statement  as  to  date  obligatory 
arbitration  could  be  put  into 
operation,  332 

Zuecari,  Chevalier  Louis,  Italian 
delegate  to  first  conference,  w69 


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